Rick Perry wasn't able to seize private property and build a Spanish toll road four football fields wide from Mexico to Oklahoma. He's probably not going to get away with making academic research illegal. But his legacy may be even bigger.
By the time he's done being our governor, Perry may have sold the rain.
On the 25th of this month the Texas Commission on Environmental Quality will begin hearings on an application that would give the Brazos River Authority ownership of virtually every drop of rainfall in its territory not already allocated to another permit-holder.
Sold. The. Rain. That's what we're talking about. You think that's crazy? Nobody can sell the rain? I ask you to keep one of Perry's own words in mind.
The Brazos River Authority, a quasi-public water development entity whose territory reaches from New Mexico to the Gulf of Mexico, is asking the state to give it perpetual control over every remaining drop of unallocated water in its domain, equal to almost twice the amount of water used by the Dallas metropolitan area in a year.
The BRA application also seeks permission to use the Brazos River as a large pipe to transport water from the BRA's 11 reservoirs and for water purchased from providers in other watersheds.
Opponents of the BRA application say it's a dangerous foot in the door for water districts all over the state. If the BRA gets what it wants from the TCEQ, every other water provider in Texas will line up right behind the BRA in Austin demanding the same deal.
Until now, if you want to dam up the rain or draw it out of a lake or stream, you have to get a permit from the state. It's the state's job to make sure you're not screwing somebody else downstream who needs it and had rights to it first.
Ed Lowe, president of Friends of the Brazos, a group opposing the BRA permit request, says the precedent that could be set on the Brazos would have a radical effect on the nature of water rights.
"If you're an orchard owner," Lowe says, "and you want to get a water right to water your orchard, you couldn't go to the TCEQ any more under the terms of the proposed permit. You would have to enter into a contract and buy the water from BRA."
Lowe, an owner of Celebration Restaurant in Dallas, owns a place on the Brazos, and is active in paddling and conservation activities statewide. He believes Texas rivers already are suffering from an over-aggressive hawking of water as a commercial product.
"There are some studies that indicate that the low flows that result from all of the water being sold are resulting in golden algae blooms which kill all the fish in the lakes, in the rivers and everywhere.
"Our feeling is that the BRA is less than trustworthy and that their main reason for being is to sell water."
The Brazos River Authority bristles at two things — at being characterized as a water seller and at the idea there's something wrong with being a water seller.
"As a water district we go back to 1929 when we were established by the Legislature," says Bech Bruun, the BRA's government and customer relations manager. "Our job as set forth by the Legislature is to manage and develop water in the basin."
That means selling water, Bruun says. "We go forth and get water permitted so that we can then put it to 'benefical use.'"
He says beneficial use is a legal term in Texas water law: "It means to sell it to municipalities for people to drink and for industries to put to use in power plants."
He says the BRA operates under a board appointed by the governor and does what the Legislature wants it to do. "To imply that we are some sort of private water marketer that is trying to go out and sell water on the open market is a little bit of a stretch and misstating what exactly our mission is.
"It's kind of like we're the bad guy for going out and selling water, and the flip side is, that's exactly what we were established to do."
But here's the Perry wrinkle. Under state law, water districts have always applied for permits to hold and sell water only after they have demonstrated that somebody needs or will soon need it. Say the BRA does a study and finds that Waco is going to grow by 30 percent in the next 20 years. It goes to the TCEQ and says, "Hey, Waco is going to need more water. We want a permit to divert and store that water so we can sell it to them."
That was the old way. Here's the new: With its permit application, the BRA is saying, "Give us all the water rights first. Later we'll let you know if we've found somebody who needs it."
That's taking the surface water out from under the TCEQ process, basically, and turning ownership of it over to the BRA in advance, in perpetuity, so that nobody else can get it.
Both the board of the BRA and the TCEQ commissioners are Perry appointees. Otherwise, there would not be much to worry about here. Last spring in Austin the BRA and its opponents, including conservation groups, Dow Chemical and agricultural interests, presented more than two weeks of evidence before a state administrative law judge. Some time later the judge issued a ruling — in effect a recommendation to the TCEQ — that the BRA application be denied.
Rick Lowerre, an attorney representing Friends of the Brazos, says, "Essentially the BRA said, 'Give us this water, and we will surely be able to use it and sell it over the next 50 years.
"It's basically speculation or what I call banking of water. They take over the role of deciding who gets water in the future, and instead of it being a benefit to the public it's whoever has the most money."
Lowerre was gratified, of course, when the judge ruled Lowerre's way. "The judge recommended denial or in the alternative sort of abating everything and letting BRA try again."
But now it goes before the three Perry appointees on the TCEQ commission, who are not bound by the judge's recommendation. Bruun says his understanding is that TCEQ staff will recommend to the commissioners they rule in favor of the BRA.
This is the same TCEQ staff and commission that mishandled federal clean air requirements so egregiously that the regional director of the EPA removed them from clean air management in Texas and took it over himself. That act, of course, put the EPA on the now famous list of federal agencies Perry plans to abolish if elected president.
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Bryan W. Shaw, chairman of the commission and a Texas A&M professor, displayed his credentials as steward of the environment by lending full-throated support to Perry's anti-EPA jihad. Buddy Garcia, the second commissioner, put his shoulder to this same wheel. Carlos Rubinstein was a TCEQ staffer for 16 years before being elevated to the commission.
Of course, there is a theoretical possibility that the commissioners will review the findings of the judge and the evidence and find it persuasive. There is also the fact that the opponents of the BRA application have political allies. They are hopeful an array of public and commercial entities may bring pressure on the commission to honor the judge's recommendation.
I just worry we're all going to walk outside one day after a prolonged dry spell when a blessed downpour finally falls from the sky to soothe the parched earth, and the only thing we'll be able to say is, "Oops. Guess that's not ours anymore."
Talk about a legacy. The only thing bigger would be if Perry could sell the air.