Water Pressures Inspire Creative Conservationism

The reeds swayed in the cool current of the San Marcos River, beckoning Dianne Wassenich like a thousand slender fingers. She was in her swimsuit, and an inner tube was on the porch, ready to take her on another lazy trip down the river. But there was work to do.

The director of an environmental group, Wassenich was busy folding hundreds of newsletters that contained the usual warnings of impending doom when the idea came to her -- an idea that two years later has placed her tiny nonprofit at the center of a flashpoint dispute over the water rights, and the future, of the West.

To encourage settlement, Western states have historically treated water, their most precious resource, like any other commodity -- one that is bought, sold and traded. So, taking advantage of the same process used to divvy up and divert river water to subdivisions, factories, mines and farms, Wassenich applied for a permit for control of 40 billion gallons of water each year, enough to supply a medium-sized city.

Her goal, however, was to leave it where it was, coursing through South Texas’ Guadalupe and San Marcos rivers before spilling into the bays and estuaries that form the northern rim of the Gulf of Mexico. The permit application, a move her opponents have described as brilliant in its simplicity, marked an attempt to turn a law designed specifically for economic development into a tool for conservation.

Wassenich, the only paid employee of the San Marcos River Foundation, is quick to point out that her campaign is not just an exercise in tree-hugging. In addition to wildlife, the shores of the Gulf support 30,000 commercial fishermen, who run a $575-million-a-year business, and a thriving tourism industry. Texans spend about $3 billion annually on vacations to seaside towns where they fish, boat and water-ski -- towns whose lifeline is the environment they were built around.

Texas officials denied Wassenich’s application this spring, prompting the organization to file a lawsuit now seen by some analysts as a bellwether for the West. And the support she has received from an unusual coalition of sportsmen, shrimpers, kayakers and innkeepers has forced Texas to join a growing list of states struggling with the notion that the best use of water, in some cases, might be to do nothing with it at all.

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A ‘Beneficial’ Purpose

For decades, Western states have granted water rights based on “beneficial” needs. That list traditionally has included mining, housing and agriculture, but not conservation, largely because no one figured the West would ever become populated enough to run out of water. That was an enormous miscalculation. The region, now home to nine of the country’s 10 fastest-growing states, is running out fast.

Wassenich’s foundation is part of an emerging movement to turn Western environmental policy on its ear by labeling conservation a “beneficial” purpose for river water. The result of their efforts could play a significant role in determining how Western states will weigh increasing demand on a limited water supply if the population continues to balloon as predicted over the next 50 years.

“We’ve been developing water for irrigation and cities in the West basically since the 1850s,” said Steve Mallock, director of the Seattle-based Western Water Alliance, a nonprofit group that campaigns for “sustainable” water policy.

“The bottom line is that we are a different place today. We are not the Jefferson-agrarian society that people thought we would be. How do you make room for changes in our economy and changes in our values? That’s what this is about. In most of the West, all of the water has been claimed -- and in some cases claimed many times over. There just isn’t much left.”

Across the nation, government regulators are under increasing pressure to include conservation as a “beneficial” use of water, said David H. Getches, a professor of natural resources law at the University of Colorado in Boulder.

A coalition of outdoorsmen and ranchers, for instance, recently tinkered with laws in Montana so that a rancher could lease his river water claim to a fish conservation group. And in Colorado, the Legislature declared recreation a “beneficial” use of water. More than 10 cities there are making an effort this summer to reserve water for tourism-generating kayak courses.

“There is mounting pressure in many states to get courts to uphold those rights,” Getches said. “They produce economic activity, just as diverting water out of a stream for a farm or a mine might have economic value. The idea of leaving water in a stream seems contrary to the original purposes of water law. But this is the reality of the modern West.”

Never did Wassenich think that her idea that morning on the bank of the San Marcos River would evolve into a campaign to alter the development of the West.

At 53, she is something of a Renaissance woman. Wassenich, a former baker and cook, once worked at a hunting camp, using pack mules to trek into the woods for weeks at a time. She has painted murals on ceramic tiles, everything from Bible verses to portraits of customers’ cats. She helped found the river foundation and, for the last 17 years, has worked mostly as a volunteer.

“People assume that the government is doing what it needs to do to sustain at least a minimum water flow in rivers. That is not the case,” Wassenich said one recent afternoon over a lunch of crab cakes in San Marcos, a town of about 40,000 nestled in the Hill Country of Texas. “It is a free-for-all. They are giving away more than exists.”

The Gulf of Mexico, environmental advocates say, is in trouble.

Texas has 21 million residents -- the second most after California -- and that number is expected to double in the next 50 years, largely in cities such as Houston and San Antonio. The state’s 191,000 miles of rivers and streams, meanwhile, like those across much of the West, already are at the breaking point.

For the last two years, a drought has seized much of the West. And this spring, for the first time since a devastating drought in the 1950s, the Rio Grande stopped flowing altogether in some places -- leaving behind a mosaic of cracked mud.

According to one hydrology survey, the Guadalupe River Basin -- the target of Wassenich’s petition and a key freshwater supply for estuaries that are home to a variety of creatures -- now spills about 1.67 million acre-feet of water per year into the Gulf. That’s a sharp drop from the historic annual average of 2.43 million acre-feet. (An acre-foot is the amount of water that would cover an acre of land with a foot of water.)

The depletion stems from both drought and the water-rights permits Texas has granted over the years to cities, developers and corporations, according to Denise Fort, a University of New Mexico law professor who headed a congressional panel that assessed the region’s water supply in the 1990s.

“It really hasn’t sunk in yet in the West,” she said, “but under our existing laws, many of our natural areas could be lost.”

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Potential for Crisis

Another drought in 1999 and 2000 was notable, Wassenich said, for how little it was noticed outside the environmental community. But its effects were brutal. More than 10% of a whooping crane flock that nests along the shores of the Gulf -- believed to be the world’s only natural migrating population of the endangered animals -- died.

The birds were seen as something akin to canaries in coal mines -- omens of something worse. Biologists believe their deaths were caused by a lack of blue crabs, their primary food. The crabs are believed to have died because the estuaries’ balance of fresh water and salt water was thrown off.

According to U.S. Interior Department documents, Texas’ Gulf shore has a high potential for a water crisis. So many businesses, government agencies and farmers have received permits granting them use of the rivers that feed into the Gulf that, by 2025, the demands of “people, farms and the environment” will likely outstrip water supply, the department said.

To receive her permit, Wassenich needed approval from the three-member Texas Commission on Environmental Quality. The panel’s executive director, faced with a fundamental challenge to the definition of “beneficial” water uses, recommended that the application be sent to an administrative judge who could hammer out its complex issues.

But the commission rejected that option and, in March, rejected Wassenich’s application as well --saying it lacked the authority to approve it because the law does not explicitly allow permits for conservation.

The commissioners, through their attorney, declined to comment for this article.

“As a matter of law, agencies do not have authority to take an action unless it is provided for by the Legislature,” said the attorney, Duncan Norton. “Any time an agency does something that some people think may be implied or should be the logical extension of something in a statute, the agency is taking a risk.”

Andy Saenz, a spokesman for the Texas Commission on Environmental Quality, acknowledged another reason the board rejected Wassenich’s permit. This spring, when the item was placed on the commission’s agenda, Texas Lt. Gov. David Dewhurst passed along a message, Saenz said: “Don’t vote on this issue.”

That’s because Dewhurst was leading a charge in the Legislature to effectively block permits that seek to take control of water solely for conservation purposes.

In May, the Legislature placed a temporary moratorium on applications like Wassenich’s, stating that lawmakers had “not expressly authorized granting water rights explicitly for in-stream flows dedicated to environmental needs.” It also established a 15-member commission to study the “public policy implications for balancing the demands on the water resources of the state.”

At the same time Wassenich was petitioning to keep the water where it was, civic leaders in the San Antonio area were moving ahead with a proposal to remove water from the San Antonio and Guadalupe rivers and deliver it to homes through a $600-million, 133-mile pipeline. The city is one of the fastest-growing in the nation.

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Permitting Continues

Some critics say Texas, at least for the moment, has a double standard when it comes to doling out water rights permits. “While we take this pause, these other permits are allowed to move forward,” said Dr. Norman D. Johns, water resources scientist at the National Wildlife Federation’s office in Austin. “It is not a level playing field.”

Mike Sizemore, a spokesman for state Sen. Ken Armbrister -- a Democrat from Victoria, near the Gulf coast, who wrote the legislation -- said Dewhurst and the senator shared Wassenich’s overarching goal of environmental preservation. But, he said, they believed that duty fell to the state, not to private citizens.

“Environmental organizations have real concern over the impact on our bays and estuaries, and I don’t dispute that,” Sizemore said. “Most Texans would agree that we need to do something. We all have the same goal. We have a difference of opinion about how to get there.”