Group tries to turn law on ear to save rivers

SAN MARCOS, TEXAS — SAN MARCOS, Texas - The reeds swayed in the cool current of the San Marcos River, beckoning Dianne Wassenich like 1,000 slender fingers. She was in her swimsuit, and an inner tube was on the porch, ready to take her on another lazy trip down the river. But there was work to do.

The director of an environmental group, Wassenich was busy folding hundreds of newsletters that contained the usual warnings of impending doom when the idea came to her - an idea that two years later has placed her tiny nonprofit at the center of a dispute over the water rights, and the future, of the West.


To encourage settlement, Western states have historically treated water, their most precious resource, like any other commodity - one that is bought, sold and traded. So, taking advantage of the same process used to divvy up and divert river water to subdivisions, factories, mines and farms, Wassenich applied for a permit for control of 40 billion gallons of water each year, enough to supply a medium-sized city.

Her goal, however, was to leave it where it was, coursing through South Texas' Guadalupe and San Marcos rivers before spilling into the bays and estuaries that form the northern rim of the Gulf of Mexico. The permit application, a move her opponents have described as brilliant in its simplicity, marked an attempt to turn a law designed specifically for economic development into a tool for conservation.


Wassenich, the only paid employee of the San Marcos River Foundation, is quick to note that her campaign is not just an exercise in tree-hugging. In addition to wildlife, the shores of the gulf support 30,000 commercial fishermen, who run a $575 million-a-year business, and a thriving tourism industry. Texans spend about $3 billion annually on vacations to seaside towns, where they fish, boat and water-ski - towns whose lifeline is the environment they were built around.

Texas officials denied Wassenich's application this spring, prompting the organization to file a lawsuit now seen by some analysts as a bellwether for the West. And the support she has received from an unusual coalition of sportsmen, shrimpers, kayakers and innkeepers has forced Texas to join a growing list of states struggling with the notion that the best use of water, in some cases, might be to do nothing with it at all.

For decades, Western states have granted water rights based on "beneficial" needs. That list traditionally has included mining, housing and agriculture, but not conservation, largely because no one figured the West would ever become populated enough to run out of water. That was an enormous miscalculation. The region, home to nine of the country's 10 fastest-growing states, is running out fast.

Wassenich's foundation is part of an emerging movement to turn Western environmental policy on its ear by labeling conservation a "beneficial" purpose for river water. The result of the efforts could play a significant role in determining how Western states will weigh increasing demand on a limited water supply if the population continues to balloon as predicted over the next 50 years.

"We've been developing water for irrigation and cities in the West basically since the 1850s," said Steve Mallock, director of the Seattle-based Western Water Alliance, a nonprofit group that campaigns for "sustainable" water policy.

"The bottom line is that we are a different place today. We are not the Jefferson-agrarian society that people thought we would be. How do you make room for changes in our economy and changes in our values? That's what this is about. In most of the West, all of the water has been claimed - and in some cases claimed many times over. There just isn't much left."

Across the nation, government regulators are under increasing pressure to include conservation as a "beneficial" use of water, said David H. Getches, professor of natural resources law at the University of Colorado in Boulder.

A coalition of outdoorsmen and ranchers, for instance, recently tinkered with laws in Montana so that a rancher could lease his river water claim to a fish conservation group. And in Colorado, the Legislature declared recreation a "beneficial" use of water. More than 10 cities there are making an effort this summer to reserve water for tourism-generating kayak courses.


The Gulf of Mexico, environmental advocates say, is in trouble.

Texas has 21 million residents, and that number is expected to double in the next 50 years, largely in areas such as Houston and San Antonio. The state's 191,000 miles of rivers and streams, meanwhile, like those across much of the West, are at the breaking point.

For the past two years, a drought has seized much of the West. And this spring, for the first time since a devastating drought in the 1950s, the Rio Grande stopped flowing altogether in some places - leaving behind cracked mud.

According to one hydrology survey, the Guadalupe River Basin - the target of Wassenich's petition and a key freshwater supply for estuaries that are home to a variety of creatures - spills about 1.67 million acre-feet of water per year into the gulf. That's a sharp drop from the historic annual average of 2.43 million acre-feet. The depletion is caused by drought and water-rights permits Texas has granted over the years to cities, developers and corporations, said Denise Fort, a University of New Mexico law professor who headed a congressional panel that assessed the region's water supply in the 1990s.

"It really hasn't sunk in yet in the West," she said, "but under our existing laws, many of our natural areas could be lost."

The Los Angeles Times is a Tribune Publishing newspaper.