Brief: Water Availability

March 16, 2019

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A Catholic perspective:

While science and faith use different language to describe the natural world, these distinct approaches can enter into a dialogue that benefits both.[1]

Catholic teaching on the world begins with an understanding that it is God’s creation and given to us as a gift.[2] The Book of Genesis notes that God looked over creation and said it was “very good.”[3] Each animal and creature reflects a portion of God’s infinite wisdom and goodness.[4] Our first parents were given dominion over nature, and thereby became its stewards.[5] Yet through sin, men’s and women’s relationship with nature—and with each other—is disfigured and tends to extremes.[6]

In environmental policy, for example, some people worship nature while others tirelessly exploit it.[7] We reject both positions as opposed to Catholic ecology. Our position is that, while water can be considered an economic good, it should not be reduced to a commodity. Rather, we must ensure a balance between providing water for basic human needs and allowing it to be properly valued for other beneficial uses.[8] However, because Texas water law is a technically complex policy topic which doesn’t include direct church ministry, we offer legislators and their staff five principles of action by which we hope they will test current legislative proposals.

  1. Human dignity: The human person was created by God and imbued with dignity, and water law should not incorporate proposals that attempt to solve environmental problems without reference to the human beings that will be impacted by such solutions.[9] We should not set the protection of the environment at odds with the protection of human life.[10]

  2. Preferential option for the poor: The poor have a special claim on our actions because each of us will be judged by how we treat the weakest among us.[11] In applying this principle, for example, water laws should ensure that the poor have ready access to safe and clean drinking water.[12]

  3. Solidarity is a firm and persevering commitment to the common good which is distinct from a feeling of vague compassion or shallow distress at the misfortunes of those who suffer.[13] In the context of water law, this principle is especially applicable in light of our obligations to future generations: we should work diligently to ensure that water is available for drinking and agriculture in the future.[14]

  4. Subsidiarity teaches that powerful organizations should help—not supplant—less powerful groups.[15] In the context of water law, laws should help river authorities, regional water districts, local water development boards, and groundwater districts achieve the common good.

  5. A common good is a goal or end which is good for both an individual and the group they are a member of. Under proper legal conditions, both Texas and Texans will have ready access to their fulfillment.[16] Water laws which respect this principle will prevent individuals from using water solely for their own benefit.[17]

[1] Pope Francis, Laudato Si, May 24, 2018. § 62.

[2] CSDC § 487.

[3] Gen. 1:31.

[4] Catechism #339.

[5] Gen. 2:15.

[6] Laudato Si, § 66.

[7] Ibid., § 78.

[8] Pontifical Council for Justice and Peace, Water: an element for life, Mar. 2003. IV.

[9] Ibid., § 109.

[10] Pope Emeritus Benedict XVI, Address to Diplomatic Corps, Jan. 11, 2010.

[11] Lk. 16:19-31; Mt. 5:3; Mt. 25:31-46.

[12] Laudato Si, § 93; Pontifical Council for Justice and Peace, Water: an element for life, (Mar. 13, 2012. § 12-14.

[13] CSDC § 193-196, § 103.

[14] Laudato Si, § 159.

[15] CSDC § 185-188; Pius XI, Quadragesimo Anno [On Reconstruction of the Social Order], May 15, 1931. § 79.

[16] Vatican Council II, Gaudium et Spes, (Dec. 7, 1965) § 22.

[17] Pope John Paul II, Sollicitudo Rei Socialis [The Social Concern], Dec. 30, 1987. § 34.

We must ensure a balance between
providing water for basic human
needs and allowing it to be properly
valued for other beneficial uses.

Texas law and policy:

Texas’ population is the second largest in the U.S., has increased more than any other state since 2000, and is expected to increase from 29.5 to 51 million (70 percent) between 2020 and 2070.[18] Each person’s daily water use ranges from 150 to 182 gallons, and while agriculture uses the majority of water in Texas (Figure 1, see below), municipal use is projected to overtake agriculture in the next 50 years.[19] Critically, Texas has had at least one severe drought every decade for the past century.[20] Seeing this, state legislators have long worked and struggled to manage Texas’ water.

Texas law distinguishes water into surface water and groundwater. Roughly speaking, surface water is state water and includes rivers, streams, lakes, and bays.[21] Groundwater is water percolating below the Earth’s surface and is excluded from the definition of state water.[22]

In order to quantify, inventory, and manage water resources, in 1967 state legislators established a review process by which individuals could receive a permit to use state water.[23] Prior to this law, landowners whose property was adjacent to surface water had a right to use an unquantified—but reasonable—amount of the water, but this right was curtailed by the 1967 Act, according to which an applicant’s right to surface water was carefully quantified, depended upon prior use, and depended upon whether the water would be put to beneficial use.[24] Surface water is over 66 percent of the existing water supply for municipal, manufacturing, steam-electric, and mining use.[25]

In contrast, state law provides that landowners may own the groundwater below the surface as real property, entitling them to drill for and produce the groundwater, subject to exceptions for waste, malice, negligent subsidence, and regulations by groundwater conservation districts (GCDs).[26] The Texas Supreme Court has ruled that land ownership includes an interest in groundwater that cannot be taken for public use without adequate compensation.[27] Groundwater is over 75 percent of the existing water supply for irrigation and livestock use.[28]

[18] Texas Water Development Board, 2017 State Water Plan, 49.

[19] Essentials 1-4 – 1-6; 2017 State Water Plan, 56.

[20] Ibid., 31.

[21] Texas Water Code (TWC) § 11.021; Mary Sahs, Essentials of Texas Water Resources, 4th Ed. (2016) 1-9 – 1-10.

[22] TWC § 35.002(5); Essentials 1-13. See Essentials for several statutory and administrative definitions of groundwater.

[23] TWC § 11.303; Essentials 3-20.

[24] Essentials 3-20 – 3-24, 9-2.

[25] 2017 State Water Plan, 68.

[26] TWC § 36.002.

[27] Texas Supreme Court, Edwards Aquifer Authority v. Day (2008); Essentials 4-9 – 4-12.

[28] 2017 State Water Plan, 70.

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