A national Latino rights advocacy group and San Antonio’s water utility submitted a filing this week in a long-quiet federal court case concerning whether Latinos are adequately represented in the entity that manages the Edwards Aquifer.
It’s been six years since the League of United Latin American Citizens (LULAC) sued the Edwards Aquifer Authority, arguing the structure of its board is unconstitutional because it gives unequal representation to the less-populated areas surrounding Bexar County.
The authority’s structure disproportionally favors Anglo voters in these areas compared to majority-Latino Bexar County, LULAC argued in its initial 2012 complaint on behalf of three Latino plaintiffs who live in San Antonio.
After a 2014 hearing in the case, an order from Chief U.S. District Judge Orlando Garcia in April 2016 allowed LULAC and the San Antonio Water System (SAWS) to submit more evidence on their behalf.
SAWS, the municipally owned water and sewer utility serving 1.8 million customers in the San Antonio region, took LULAC’s side early in the case. SAWS holds the majority of Edwards Aquifer, with fees on its water permits accounting for 80 percent of the authority’s funding as of 2012, according to SAWS.
In an advisory filed in Western District Court in San Antonio on Monday, lawyers for LULAC and SAWS pointed out “the passage of time since the matter was submitted.”
“LULAC plaintiffs and SAWS thought it might be helpful to the Court to have the updated information contained in this advisory,” the advisory continues. “They stand ready, of course, to provide whatever additional briefing or argument the Court may deem appropriate for resolution of the constitutional matter under submission.”
In their filing, LULAC and SAWS also pointed out that 10 of the 15 elected board members are up for re-election in November – Districts 1, 3, 5, 6, 7, 8, 9, 11, 13, and 15.
“There’s no question the voting power of the Bexar County voter is dramatically less than anyone else’s,” SAWS attorney Steve Kosub said. “The issue grows worse as Bexar County grows.”
LULAC national legal advisor Manuel Escobar Jr. did not return a phone call seeking comment.
When the case was first filed, it captured the attention of almost every group that depends on the Edwards Aquifer, a massive underground limestone formation that holds the largest source of drinking water in the San Antonio region.
Many worried that it would upset a carefully constructed arrangement over how to manage the aquifer that involved compromise among San Antonio, smaller cities that also lie over the aquifer, farmers in the region, and downstream communities that rely on rivers fed by the aquifer’s springs.
The cities of San Marcos and Uvalde, New Braunfels Utilities, and Uvalde County were among the entities that intervened on the side of the Edwards Aquifer Authority.
“What is at stake here is the unique balance we’ve been able to strike among the various interest groups in the region,” said Roland Ruiz, general manager of the Edwards Aquifer Authority, which was created by the Texas Legislature in 1993.
The board’s structure involves 15 voting members – seven from Bexar County and eight from the more rural and suburban counties surrounding it, including all or parts of Atascosa, Caldwell, Comal, Guadalupe, Hays, Medina, and Uvalde counties.
That gives unequal proportion to smaller counties, such as Medina County, which in the 2010 Census had a population of 172,332, compared to Bexar County’s more than 1.7 million.
That meant board members in Bexar County on average represented more than 244,000 people, compared to an average of 86,166 people, according to LULAC.
The Edwards Aquifer Authority doesn’t dispute those facts, Ruiz said, but such a structure was necessary to achieve compromises like protecting endangered fish, salamanders, and other creatures that rely on aquifer-fed springs while still making enough water available for cities and farmers.
“We know that the system as it was constructed by the Legislature does not conform to that, for a very clear reason, because it was to bring all the various parties together,” he said. “Historically, the battles were always about use and access to the aquifer.”
The authority has also claimed that as a “special purpose district” focused only on water, the one person, one vote doctrine does not apply to it in the same way it would for a general government body, such as a City Council or a Congressional district.
This Rivard Report on “Latino Rights Group, SAWS File Update…” is a very important issue for all residents of San Antonio, and not just Latinos. The Rivard Report states that San Antonio residents pay 80% of the cost of the Edwards Aquifer Authority (EAA) organization, but only have a little less than 50% of the EAA board’s vote.
The Rivard report 2010 census numbers show that San Antonio and Bexar County represents 90% of the population of the EAA district area. But based on 1.7 million population for Bexar County and .7 million population for the other seven EAA counties, Bexar has about 71% of the EAA population.
Water cost to Bexar County residents is not just the 80% cost of the EAA organization. Future water replacement costs to Bexar County residents, such as desalination, are estimated to be ten times the cost of current EAA water.
As the EAA Board limits the use of water of San Antonio residents, based on endangered species or other reasons, the cost of alternate sources of water, could be very significant. On the other hand, the cost of water for the other seven counties in the EAA may remain low or even decrease. The other seven counties have more farms, which have reduced water rates. Some of the other seven counties have down stream free water from the Comal Spring and other springs.
One solution for Bexar County is capturing water, including floodwater, for recharge of the Edwards Aquifer. But, for the past several years the other seven EAA counties have opposed recharge of the Edwards Acquifer, perhaps because some (small amount) of the water captured for recharge would have flowed to the seven counties.
Will future cost of water for San Antonio be shared fairly by all eight counties represented on the EAA board? Will other counties get free Edwards Acquifer water from the Comal Spring and other springs, while the water cost for San Antonio residents increase significantly?
Can the Rivard Report mention the constitutional arguments of the litigant’s? Is “taking of property” a significant constitutional issue?
First, take any number, figure or statistic provided by SAWS with a large grain of salt. The SAWS data, for example, is over 5 years old. SAWS has not published its 2018 budget, adopted in Nov 2017, but the EAA has already published its 2018 budget, adopted after SAWS. Why should we consider old, pre-Bexar Met integration, pre-Vista Ridge, pre-expanded Carrizo ASR data from SAWS to be relevant?
If SAWS was providing “updated data” to the Court, why wasn’t the funding data updated? A current 2018 budget from SAWS may actually show how much, in what form, for what permits, SAWS provides to the current 2018 EAA budget. Importantly, it would also show how much SAWS receives back from the EAA, and that number is not trivial.
Contrary to other comments, “San Antonio residents” do not pay 80% of the EAA fees with “less than 50%” of the Board’s vote. If SAWS data was correct (which is a big if), SAWS, as the largest Municipal & Industrial (M&I) user of the aquifer, generated 80% of the revenue [in 2012] because of its permits. SAWS serves non-San Antonio residents, and residents outside of Bexar County, too. SAWS also sells water commercially. Equating “San Antonio residents” to be one and the same as “SAWS” is incorrect; it is further incorrect to assume all Bexar County residents are also San Antonians who are also SAWS customers. The SAWS’ attorney’s comments about Bexar County residents being “underrepresented” is misleading.
Per the already-published 2018 EAA budget, “As set forth in the EAA Act, M&I permit holders pay AMFs based on the amount of groundwater authorized to be pumped in a given year. Revenue from this source represents about 98.9% of total General Fund revenues in 2018, based on the $42 per acre-foot AMF rate. Revenue from agricultural permit holders, who pay $2 per acre-foot of groundwater actually pumped as set forth in the Act, represents less than 1 % of the total budgeted revenue.”
It is my understanding that SAWS, as policy, pumps as much as authorized from the Edwards and transfers the excess to the Carrizo aquifer as part of the ASR projects. SAWS takes as much water as it legally can from the Edwards Aquifer.
Did SAWS provide numbers to explain the circa-2012 80% number, or was it simply a percentage without context? Was that for the General Fund for the EAA, or just the EAHCP? Or was it the Comprehensive EAA Budget? Because that’s how the EAA breaks out its numbers. SAWS was probably non-specific.
In 2018, the EAA will pay SAWS $6.9 M for reimbursement of the ASR project. It will pay SAWS another $4.5 M for leak prevention efforts. These items are listed in the EAA budget (overall $36 M). I’m sure there is more money flowing back to SAWS, but without current financials, it’s hard to tell. SAWS may claim, using outdated statistics [because that’s what SAWS does] that it paid 80% of the EAA bill in 2012, SAWS doesn’t provide the numbers that tell the whole story.
With Vista Ridge, SAWS and the San Antonio City Council have demonstrated that SAWS will use its deep pockets and bullying power to take water from neighboring counties against the wishes of the residents of those counties. The “constitutional representation” argument is like a SAWS sewer line: it leaks and smells bad.