Following the defeat of the Texas Basins Project at the polls in the 1960’s, several provisions were placed in the Water Code and the Constitution by the Legislature in order to protect against another such project intended to move water around the state. These were Section 16.052 of the Water Code which prohibited the consideration of inter-basin water transfers in the Texas Water Plan, and another prohibition of the use of state funds for water projects involving IBT’s. The latter provision was echoed in the Texas Constitution (article 49-d). 

In spite of its rejection by the voters and the Legislature, the state water planners continued to hold to the proposition that “there is plenty of water in Texas; it is just in the wrong place.” Demands for new water sources by the growing cities of South and South Central Texas apparently made the TWDB decide that these restrictions on inter-basin transfers had to go.

Apparently fearful of facing the legislature and the voters with any proposal to remove the safeguards for river basins having water available, TWDB resorted to “stealth” legislation. Choosing the most congested time of the 72^nd legislative session, Senator Sims held a hearing on SB 1059, which was drafted by the TWDB. SB 1059 appeared on the surface to clean up a number of routine administrative matters at the TWDB. Its ten sections included deletion of obsolete position titles, changes in definitions, and other routine changes to the Water Code. 

In Section 10 of the bill, two sections of the Water Code were repealed. One of these, 6.182, had created several jobs no longer used by TWDB, and its repeal was another routine administrative matter. The other, 16.052, was the provision blocking the TWDB from the consideration of IBT’s in their water planning.

SB 1059 was one of more than a dozen bills heard by the Senate Natural Resources Committee on April 24, 1991 at its 2:00 pm meeting in the Lieutenant Governor’s committee room. The bill’s sponsor, Chairman Sims, relinquished the chair and was recognized to explain the bill. Senator Sims’ said, “The bill clarifies the role of the TWDB in administering its financial assistance programs. That’s basically what it does.”

The Chair then recognized Jack Fickessen, then Operations Manager for the TWDB. Fickessen explained the purpose of SB1059. He said, “This bill tries to bring the Water Code more in line with where the Water Development Board is today.” In other words, the bill was designed to bring state law more in line with agency thinking.

This might come as a surprise to those who thought that the Legislature passed laws which set state water policy, and the water agencies executed those policies. Some might think that Mr. Fickessen’s statement to the contrary, made in front of a legislative committee, could give arrogance a bad name.

Like Senator Sims, Mr. Fickessen neglected to inform the committee that the bill contained the most important change in the Texas Water Code in several decades, that is the repeal of the ban on the consideration of IBT’s in the state water plans.

So, SB1059 passed both houses of the legislature as part of the consent agenda and was signed into law, hidden from the view of the public, of the press and of those legislators whose districts would be damaged by the change, with no public hearings and no floor debate. The Trans-Texas Water Project, that proposed to solve the water supply problems of several of the large cities of South Texas by interbasin water transfers, was kicked off the following year.

There was considerable pride on the part of the TWDB in the repeal of sec. 16.052. One of the senior TWDB staffers who was involved in the scam, said several years later, “We hid it.”

With the surreptitious removal of the statutory ban on IBT’s in state water plans, the TWDB was emboldened to try to remove the other burr under its saddle, the provisions in the water code and Constitution prohibiting the use of state funds for water projects involving IBT’s. It is one thing to make an under-the-table change in the Water Code, and something else entirely to make a secret change in the Constitution, since Constitutional amendments require the approval of not only the Legislature but also the voters. Nevertheless, one senior staffer of TWDB said at a Trans-Texas meeting in San Antonio that section 49-d-3-(b) of the Constitution might “have to go.”

So, when SJR17 appeared on a committee agenda containing changes to that same section of the Constitution, volunteers from Highland Lakes Group gave the bill careful scrutiny. SJR17 offered an apparently reasonable and desirable change to the Texas Constitution. State funds were formerly dispensed for various purposes from individual funds earmarked for water supply, water quality, research, etc. SJR17 proposed to consolidate all of these individual funds into a single fund. 

The problem was that each of the former funds was subject to the constitutional provision (49-d-3-(b)) which prohibited the use of state funds for water projects if an IBT were involved. The proposed new fund was not subject to that provision. So, while section 49-d-3-(b) would remain inthe Constitution, the funds from which TWDB would dispense grants and loans would no longer be subject to it. 

By the time that Highland Lakes Group brought this to light, SJR17 had already passed the Senate and the House Natural Resources Committee and was due for a House floor vote. The Texas Legislative Council agreed that the proposed change would make the new fund exempt from 49-d-3-(b), Representative Terry Keel drafted an amendment which would maintain the status quo by bringing the new fund under section 49-d-3-(b), and the amendment was included in the final version of the bill.

So, the TWDB tried another end run around the Legislature and the voters through another piece of “stealth” legislation, but this time unsuccessfully. 

There is no doubt that, given the longstanding inclination of TWDB toward attempting to change Texas water law through chicanery and subterfuge, that another sub rosa attempt will be made to remove unwanted restrictions on its operations. 

The Legislature brought the latest brain child of the TWDB, Trans-Texas, to a premature end in the 1997 legislative session by passing SB1. SB1 removed the TWDB from direct involvement in the Texas water planning process and replaced it with sixteen regional water planning groups. Senator Kenneth Armbrister, speaking to the Lower Colorado Regional Water Planning Group on August 12, 1999, said, “…the State has provided us with regions under Senate Bill 1, and it was done for a very particular purpose, …and that was to break the hold that a single bureaucracy in Austin had over water issues, water planning.”

HLG directors propose to complete that separation of TWDB and its culture of legislative subterfuge from the water planning and financing process in Texas. The remaining functions of the TWDB could be absorbed as departments of TNRCC, or the water project financing task could be taken over by the state Comptroller’s office.

This letter expresses the opinion of the six directors listed below, but not necessarily of the member organizations of Highland Lakes Group. HLG members will be shown a copy of this letter in the HLG newsletter and asked to contact you directly if they have an opinion one way or the other on this subject.

If we can contribute testimony at a public hearing as part of this review process, please call on us.

Sincerely,
 

Cole Rowland	Rusty Allen	Jim Barho	Bob Benton	Leon Seidl	Bob Vann
President	Director	Director	Director	Director	Director