In a ruling this week on a water case that involved voting rights and control over the Edwards Aquifer, a San Antonio federal judge upheld the current balance of power in the aquifer’s governing body.
U.S. District Judge Orlando Garcia on Monday ruled that the makeup of the board of the Edwards Aquifer Authority (EAA) is not unconstitutional, as claimed in 2012 by the League of United Latin American Citizens (LULAC) and the San Antonio Water System (SAWS).
SAWS, the municipally owned water and sewer utility serving 1.8 million people in the San Antonio area, had early on joined the case as an intervenor on the side of LULAC, arguing the structure of the authority’s board violates the Equal Protection Clause of the 14th Amendment.
A win could have led to a change in the makeup of the board to give Bexar County more representation on the EAA due to its larger population than the other voting districts.
The Texas Legislature created the EAA in 1993 to manage the Edwards Aquifer, a vast limestone rock layer that holds the largest source of drinking water in the San Antonio region. Its jurisdiction includes all of Uvalde, Medina, and Bexar counties, and parts of Atascosa, Caldwell, Comal, Guadalupe, and Hays counties.
The 17-member board includes 15 voting members representing districts: seven in Bexar County, one in Comal County, one representing parts of both Comal and Guadalupe counties, one in Hays County, one representing parts of Hays and Caldwell counties, one in Medina County, one representing parts of Medina and Atascosa counties, and two in Uvalde County.
The districts don’t reflect population distribution but are the result of what advocates of the system say are a compromise among urban and rural people who all depend on the same water source.
“The Court’s decision solidifies the carefully constructed balance struck amongst regional stakeholders when the EAA was created and will allow the EAA to continue to provide the highest level of services to all users of the Aquifer in a fair and equitable manner,” said Luana Buckner, chair of the authority’s board of directors, in a prepared statement.
Many of San Antonio’s neighboring communities that also depend on the Edwards Aquifer had joined the case in support of the EAA, including the City of San Marcos, City of Uvalde, County of Uvalde, New Braunfels Utilities, and the Guadalupe-Blanco River Authority.
Garcia’s ruling left open the possibility of LULAC pursuing an additional claim under Section 2 of the Voting Rights Act. The national Latino rights group had earlier agreed to stay its claim that the authority’s structure improperly dilutes minority votes in Bexar County.
Whether it will do so is unclear. Lawyers for LULAC did not immediately return phone calls and emails Tuesday seeking comment.
The ruling dismissed SAWS’ only claim against the Edwards Aquifer Authority. SAWS owns the majority of pumping rights to the Edwards Aquifer.
SAWS attorney Steve Kosub said the ruling “means the voting power of a Bexar County voter is dramatically less than the voting power of a member of the other counties within the [authority’s] jurisdiction.”
The ruling centered around whether the EAA should have an exception from the Equal Protection Clause requiring “one person, one vote” – in other words, that voting districts be of equal population.
Garcia’s opinion sided with EAA in its argument that it qualifies as a “special purpose district” that fulfills only a narrow government function.
“It is undisputed that some of the [EAA’s] districts are urban and very populated while others are rural and less populated,” it states. “However, the EAA is a special purpose district and its apportionment plan is not subject to the strict demands of the one person one vote principle.”
SAWS has argued that the principle should apply to the EAA because of the importance of water.
“The key issue is whether a governmental entity like the EAA exercises governmental functions that essentially have an impact on the daily lives of ordinary citizens,” Kosub said. “We have always felt, and I think offered extensive evidence to show that the functions of the EAA are very broad.”
Kosub said SAWS does have “appellate options” but declined to say whether the utility will appeal the decision.
The court ruled that the Edwards Aquifer is not a general-purpose government entity, and therefore is not in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. But this does not mean that Bexar County residents are being treated fairly by the Edwards Aquifer board.
San Antonio (Bexar County), small cities, farmers, and businesses are competing for the pumping and the free flow from the Edwards Aquifer water. Significant free flow of the Edwards Aquifer water is from the Comal and San Marcos springs.
The Edwards Aquifer was established by state law as a “conservation and reclamation district”. The court decision states “In this case, the primary purpose of the EAA is the management, protection, preservation, and conservation of the Edwards Aquifer, a unique and distinctive natural resource.” The Court states that section 1.01 of state law states …”the Edwards Aquifer is declared to be a distinctive natural resource, a unique aquifer, and not an underground stream…”
Will Bexar County residents pay for 100% or for a majority of the conservation? Will downstream cities and industry benefit with free Edwards Aquifer water from the Comal and San Marcos springs, while San Antonio pays for desalination, expensive new sources of water, and other conservation projects? Do a majority of the Edwards Aquifer board members have more incentive to protect and increase the flow of the springs, than implementing the right technology for conservation?
When it comes to allocations from the Edwards Aquifer, there is a long history of tension between SAWS and the needs of others who rely on the Edwards, which, most notably triggered a law suit by the Sierra Club in 1996 to protect endangered species at Comal and San Marcos springs by curtailing unlimited pumping by SAWS. Because of that lawsuit, the Edwards Aquifer Habitat Conservation Plan has a menu of programs, like the Voluntary Irrigating Suspension Program Option, designed to sensibly and fairly manage Edwards allocations with respect to the needs of all users during times of drought.
Maintaining the current balance on the Edwards Aquifer Board is, I believe, is crucial to maintaining the equitable management of this resource. SAWS customers use one third to one half of our water supplies to irrigate lawns. To accord greater weight to this purpose, over the needs agricultural interests in areas with less populations who may represent a higher and better use of Edwards water resources, would not serve our region well and would not represent the intent of those who created the Edwards Aquifer Authority.
Among other benefits of how the Edwards is currently managed is the preservation of spring fed rivers needed to maintain the balance of saline and fresh water in gulf coast bays and estuaries. A respect for the Edwards Aquifer and its watersheds as an interconnected ecosystem must be achieved for a best case scenario for regional management of this marvelous water resource.
Finally, to address Rudy’s concerns about San Antonians paying for new water supplies: SAWS has already committed to the Vista Ridge project, which requires SAWS customers to foot the bill for so much water that SAWS is seeking to sell the water for consumption outside of Bexar County. I agree that a serious conversation about SAWS expanding its role as a water supplier is needed. But, changing representation of the EAA Board would not ultimately achieve fair treatment of SAWS ratepayers.