did kinney county break its desired future conditions? (part 1)

I’ve been getting several communications about whether or not the desired future conditions for Las Moras Springs were met last year. Apparently, there’s some disagreement.

Let’s take a look.

First, we need the desired future conditions. We can find that at the Texas Water Development Board web page:

“Total net drawdown in Kinney County in 2070, as compared with 2010 aquifer levels, shall be consistent with maintenance of an annual average flow of 23.9 cfs and an annual median flow of 23.9 cfs at Las Moras Springs”

This is the Board’s summary of the desired future condition. To be “safe” (and refer to the primary source), let’s check this with what is in the districts’ officially submitted desired future conditions:

“Total net drawdown in Kinney County in 2070, as compared with 2010 aquifer
levels, shall be consistent with maintenance of an annual average flow of 23.9 cfs
and an annual median flow of 23.9 cfs at Las Moras Springs (Reference:
Groundwater Flow Model of the Kinney County Area by W.R. Hutchison, Ph.D.,
P.E., P.G., Jerry Shi, Ph.D. and Marius Jigmond, TWDB, dated August 26, 2011).”

Alrighty then.

This is a drawdown-based desired future condition (“Total net drawdown…”) where drawdown, in this case, is the decline in aquifer water levels between 2010 and 2070. The drawdown is undefined in this statement, and the districts’ desired future conditions reference a model report. I was not able to find what total net drawdown is associated with the reported springflows in the report, although I admittedly did not read the report in detail (219 pages, and I got other stuff to do today). However, when I search on that spring flow (23.9 cubic feet per second), it doesn’t come up.

There are a number of issues with using drawdown-based desired future conditions. How, exactly, is drawdown measured (or estimated) across the county? It’s stated above that the desired future condition is “total net drawdown in Kinney County.” However, because we don’t have measurements across the entire county, we have to estimate drawdown in areas we have no data, and different estimation techniques come up with different answers. This issue is not unique to Kinney County. What is unique is that there is not a number there quantifying “Total net drawdown in Kinney County.”

What is there are two measures of springflow: “an annual average flow of 23.9 cfs and an annual median flow of 23.9 cfs at Las Moras Springs”. The use of “and” here means both of these conditions have to be met. And there is data to assess compliance with these two measurements.

The U.S. Geological Survey operates a stream gage downstream of Las Moras Springs. I downloaded mean daily discharge data for 2024 to calculate the statistics. The gage measures flow multiple times a day, hence my use of mean daily discharge data. The average flow at Las Moras Springs in 2024 was 5.9 cubic feet per second and the median flow was 2.5 cubic feet per second, substantially lower than 23.9 cubic feet per second in the desired future condition. Whatever drawdown conditions there were in Kinney County in 2024, they were sufficient to lower spring flows below those stated in the desired future conditions.

Someone might argue that because pumping is lower than the modeled available groundwater amount that they are in compliance with the desired future condition (recall that modeled available groundwater is the Texas Water Development Board’s best estimate of how much can be produced to achieve the desired future condition). However, the Texas Water Code is all about the desired future conditions, not the modeled available groundwater. The Water Code requires districts to define desire future conditions, pass rules to achieve desired future conditions, and enforce rules to achieve desired future conditions. Not achieving the desired future conditions is a petition-able offense to the Texas Commission on Environmental Quality. Modeled available groundwater is a mere Robin to desired future condition’s Batman.

If I activate LawyerMode(c) (that is, if I wanted to be argumentative, a talent I learned at the state when reading draft statute and rules for potential loopholes), the desired future condition might have a hole large enough to drive a water truck through it.

Let’s look at the words again:

“Total net drawdown in Kinney County in 2070, as compared with 2010 aquifer levels, shall be consistent with maintenance of an annual average flow of 23.9 cfs and an annual median flow of 23.9 cfs at Las Moras Springs”

Note that the desired future condition states “Total net drawdown in Kinney County in 2070.” One could argue that the second little “in” means that the district has until 2070 to achieve the desired future conditions. In other words, we can’t assess compliance with the desired future conditions until 2070 (I’m not sure I’ll make it that long).

If the desired future condition was all about springflow, it could have simply read:

‘”Annual average flow of 23.9 cfs and an annual median flow of 23.9 cfs at Las Moras Springs.”

But it doesn’t. I’m not sure why the drawdown language is in there the way it is (it’s been there since the beginning of the desired future conditions process). It may be on purpose (obviously there was some level of purpose involved) or it may be there as a consequence of word vomit. The codes are littered with examples of unintended consequences.

Just as the legality of a law isn’t truly known until the highest court has ruled on it, we won’t know the what the correct interpretation of the desired future conditions until the commissioners of the Texas Commission on Environmental Quality rule on it after a petition, and, even then, that decision could be carried into the courts. For the time being, as the local regulator, it’s up to the district to interpret its desired future conditions. I might suggest a closer reading of the wording for the next round of desired future conditions (unless the current wording is what they intended all along).

Go ahead: Read part II!