Joe Moore, Jr. Interview, Part 2 of 2

  • DT: I wanted to ask you about the federal level of water supply issues in Texas and I understand that there was some tension between the Bureau of Reclamation and the Army Corp of Engineers over who had jurisdiction in the state.
  • Could you comment on some of that?
  • JM: First you have to recognize that the creation of the Corp of Engineers, they claim to be one of the oldest governmental institutions in the country, going back to the Revolutionary War.
  • But you also have to recognize that have a constitutional function in that navigation is reserved to the federal government.
  • Navigation was important when the constitution was adopted in the 1700s and so in peace time, the Corp of Engineers occupied itself with navigation projects. So wherever navigation is contemplated in the country, it becomes automatically a Corp of Engineers project because of the federal interest in navigation.
  • They could add water supply. But when the Bureau of Reclamation was created, you must remember the Bureau of Reclamation was created in the Department of Interior primarily to assure the settlement of the West.
  • This was a device to spread the population across the United States because a householder could get 160 acres of irrigated land provided by the federal government so it was a federal land grant operation to assure settlement.
  • And so you--they had an interest in getting people where there weren't people and the primary limitation was regarded as water.
  • So Bureau of Reclamation had that edge up in the West.
  • Both the Corp of Engineers and the Bureau of Reclamation can build projects with water supply in them, but if the Bureau of Reclamation proposes to build a project in the--anywhere in the West in their jurisdiction that includes flood control, the Corp of Engineers must design that part of the project.
  • So flood control is a Corp of Engineers responsibility wherever it is and that is historic because after navigation then the Congress added flood control and the flood control functions began in the East where the people were.
  • And as the people moved, flood control remained a Corp of Engineers Department of Defense function.
  • The--then the Department of Agriculture comes along as a part of its conservation function and starts building small reservoirs under the old Soil Conservation Service.
  • Now the Natural Resource Conservation Service but they also manage to get authorization to add water supply up to 5000 acre feet to any Soil Conservation Service reservoir.
  • So you had not only Soil Conservation Service as--whereas remember these are being built on private land at federal expense with no public access, as a general rule.
  • So, we had the Department of Agriculture, Department of Interior, and Department of Defense involved in water development in Texas and there was tension between the Bureau of Reclamation and the Corp of Engineers.
  • I'm sure there were Corp of Engineers people who despised Harry Burley because of his connection. And his connection was lifetime.
  • One of the ironies is, of course, that after--after Harry retired from the Bureau of Reclamation, he became the Executive Director of the Texas Water Development Board.
  • So he played, in his lifetime, one role on the federal side, another role on the state side.
  • But in Lyndon Johnson's tenure, at some point, he decided to stop the war--the water wars in Texas.
  • And he forced, at the secretarial level, a memorandum of understanding between the Secretary of Interior, Secretary of Defense, and the Secretary of Agriculture and this was before he became president.
  • But there was a memorandum of understanding that spelled out their respective jurisdictions in the State of Texas.
  • This was done during my time with the Texas Water Development Board.
  • Somewhere I had a copy of that memorandum of understanding signed by all three secretaries of those departments.
  • And that spelled out which would have responsibility for what and that ended--now there may have been continuing battles but that ended public disputes.
  • The other thing they would do is compete with the local share.
  • The interest--the local interest would go with the Bureau of Reclamation and say, how much will we have to pay if you build the dam?
  • And the Corp of Engineers would find out about it and they'd go tell them, well, we'll give you a better deal than the Bureau of Reclamation can do.
  • Now you understand theyre both getting their money from the same source, the American taxpayer but they're getting them from different committees of the Congress.
  • And don't ever forget that regardless of the position of the executive, in the U.S. Congress they're a vested interest in the maintenance of the structure that exists in the executive side.
  • One of the major bars to a single federal construction agency for water projects has always been the committees of the Congress
  • because there's a special committee that handles Department of Interior and a different committee that handles Corp of Engineers
  • and neither one of those Congressional groups wanted to give up its authority or autonomy to some other committee that might be created to oversee water from the federal level.
  • That's the reason we have no national water policy.
  • You cannot get a national water policy from the executive branch of the government.
  • The only way it can be done is with a mix of executive branches--executive branch representatives and congressional representatives with an agreed agenda for water.
  • And so you had that--you had that tension in Texas but that largely, so far as I was able to tell, that largely dissipated through this planning process. The Corp of Engineers--more reservoirs in Texas are Corp of Engineers reservoirs than they are Bureau of Reclamation reservoirs.
  • You also must appreciate that we have State Department Reservoirs.
  • Most people dont recall, but the International Boundary and Water Commission which governs the boundary from Brownsville all the way across to California is a State Department Agency.
  • And so the dams on the Rio Grande, Amistad, and Falcon are State Department Reservoirs governed by the International Boundary and Water Commission.
  • Now they may have been on the U.S. part constructed by the Corp of Engineers, but they are entirely under State Department jurisdiction.
  • If you want to do something on the Rio Grande, you have to go through the International Boundary and Water Commission in El Paso which reports to the State Department, not to the other agencies.
  • The Pecos River is somewhat affected because the Pecos River flows into Amistad [Reservoir] just above Langtry on the Rio Grande.
  • Is that what you were interested in terms of the federal agencies? The--nowadays the Bureau... (misc.)
  • JM: You were interested in markets in water.
  • The--you also must remember that, along with other governmental functions, if you have markets that don't depend upon governmental agencies, what are the committees of the Congress and the state legislature going to do?
  • There is a vested interest in maintaining some function that requires governmental action.
  • There's a reluctance even on the part of elected legislators to turn something over if they've had an impact or control of it, to turn it over to somebody that's going to run it independently of the government.
  • The other problem is, what is water worth?
  • And I always like to answer the question by saying, it depends on where you are.
  • If you're on top of your house floating down the river in a flood, you don't want much more. But if you're in a drought, and your crop is drying up or your industry has been restricted on water use, or you can't water the roses, water has a different value.
  • So it depends on where you are.
  • We have developed prices for water.
  • In Texas the only water market--serious water market that exists is in the Rio Grande Valley but this exists by virtue of litigation.
  • The Rio Grande water suit. Which settled the allocation of the United States side, the Texas side of the Rio Grande River and that system is managed by a water master but you can only sell within your water use.
  • Irrigators can sell to irrigators. Or if an irrigation district has a municipal allocation, they can sell it to a municipality. But you cannot sell irrigation water to a municipality in the existing water market.
  • The only place where you have significant water markets is in California and that has evolved because--partly because of their water distribution system where the California Water Project has some purchasers who don't yet have delivery systems for the water.
  • And so, since they're paying--it's always a take or pay proposition so they're paying for water they can't take because there's not a delivery.
  • If they can find an exchange so that they can buy water closer to them and sell their water that's further away from them to somebody else, then they can have a water market.
  • Or one of the things they're doing there is the entities are buying surface water and storing it in the ground, something called aquifer storage recovery. So that you store water in vacant space in the ground and then withdraw it when you have periods of need.
  • Now the San Antonio experience, having to do with the Edwards Aquifer is a slightly different set of circumstances.
  • The only market that San Antonio has effectively attempted is something called the Irrigation Suspension Program.
  • And what the water utilities, water purveyors in Bexar County did two years ago was pay irrigators not to irrigate and then claim--then the purveyors could claim the water that the irrigators would otherwise have used.
  • So, in effect, what they said of the irrigator is, it's just like the agricultural program where you put your land in--out of production and you get paid for not growing anything.
  • Well you pay the irrigators not to grow anything and tell them to take a trip to Europe.
  • And pay them an agreed upon price and the Edwards Aquifer Authority actually took bids from the irrigators saying, What will you sell the water for? And then they had a choice of prices for selling the water.
  • Now you understand that's a one year deal. To buy the water rights is a different question.
  • Now they're going to have water rights in groundwater once they get a valid permit. Then theoretically the irrigator should sell the value of the water to a municipal water purveyor.
  • But the differential is substantial. You may sell an annual acre foot under the irrigation suspension program for $35 or $40 dollars an acre foot, but if you buy the water rights, you may pay $700 an acre foot.
  • There are water rights being bought but nobody knows for sure yet what is being bought and sold because there's no final groundwater right yet in the jurisdiction of Edwards Aquifer because of litigation that is held up the system of providing final permits.
  • They're also exploring this aquifer storage recovery process where you go down into the Chorizo in Atascosa County where the water level has dropped because they're mining the Chorizo Aquifer.
  • At that point, there is space into which you could put water.
  • The landowners objection is, Are you going to put treated sewage down here? Or are you going to put high quality water?
  • As a general rule at this juncture, you almost have to treat the water to drinking water standards before you put it underground.
  • Then you hope that when you take it back out of the ground, you'll only have to chlorinate it before using it.
  • Otherwise you end up with a double treatment cost which affects the economics of the sale.
  • The first surface water to come into San Antonio will come from a water treatment plant being built by the Bexar Metropolitan Water District which will build a plant that will produce roughly 10,000 acre feet a year, 9 million gallons a day
  • of treated surface water out of the Medina River into southwestern San Antonio
  • but that has been controversial, too, because people in San Antonio, because of the political situation, have argued that there's a perennial candidate for mayor down there named Kay Turner that calls surface water sewage water.
  • And so any water that--surface water that comes in there, they oppose on the grounds that you're going to force the people in San Antonio to drink sewage water.
  • We will eventually--we will eventually have a water market.
  • Now the other kind of water market that we've had is the Garwood Irrigation District example in the Colorado, where Garwood sold the water rights, not the quantity, on an annual basis.
  • They actually sold the water right to Corpus Christi for roughly 35,000 acre feet.
  • And Corpus Christi paid a substantial price. Something like $800 an acre foot for that water.
  • Now they had--they pay that out over time, but in addition to that, they have to build--remember they must build a conveyance facility to get the water from the Colorado to Corpus.
  • The conveyance facility will be the one that goes to Texana so that the water in Texana will go to Corpus and then it will be replaced by water pumped from the Colorado into the Texana Reservoir.
  • So they're crossing at least two and maybe three boundaries between the river systems in order to get the Garwood water to Corpus.
  • Now the other deal, of course, is that now the lower Colorado River Authority has bought the balance of the Garwood irrigation water which may approach 100,000 acre feet, eventually
  • as the irrigation declines and as--some of the irrigation there is projected to decline but the irrigators are assured of their water supply so long as they need it
  • but ultimately that water will be converted to municipal water supply and then LCRA has turned around and recently negotiated a deal to sell perhaps as much as half of that water to the City of Austin
  • which is ironic because the City of Austin has the right to 300,000 acre feet out of the Colorado and theyre only using 150,000 acre feet now,
  • which--they didn't have to pay for any of that water--but now they're going to start paying for an additional quantity which may not be needed until the year 2050.
  • But it's all--everybody says that's a great deal for water market. You had some interest in why you'd do it in advance.
  • The reason you do it in advance is because of the lead times that it takes.
  • If you were to--if an entity were to decide today that they were going to build a significant reservoir, they must be prepared to go through a process that will consume at least 25 years before they can start construction.
  • And so you have to know where you're going to be if you--with that kind of lead time.
  • And every year of that costs money. So that you will be--the entity will be paying out money 25 years in advance of ever beginning construction.
  • Then they'll have to pay the construction costs and then from that water, if it's a surface water reservoir, from that water they will have to recover their 25 years of expenditure plus the construction costs of the reservoir.
  • So it's the lead time that poses the problem and the lead time is dictated by the regulatory process that now governs the permits you have to have in order to build a reservoir and the potential for litigation.
  • Any reservoir proposed today of significant size in this state, must anticipate--you have to set aside several millions of dollars for legal fees because you--any reservoir will be litigated.
  • You cannot build one without litigation. And that accounts for the--that accounts for the timeone of the time frames.
  • See, look at the position City of Dallas. You can say well they spent the money prematurely.
  • First off, the water that they--from the reservoirs they built, is the cheapest water you can find today.
  • The water that was in Lake Palestine even though they had to build a pipeline to Palestine to get it, is the cheapest water they can buy.
  • They cannot--there is not a cheaper alternative in the Dallas-Fort Worth area because of the relative difference in the economics in the time span that has passed since they built them.
  • So there are a lot of people who say--and the environmentalist Howard Saxon used to, with the Sierra Club, used to take me to task for building them prematurely and I said, look regardless of how long in advance they're built, they'll still be the cheapest alternative when the time comes.
  • And you see an example of that is Canyon Reservoir in the Guadalupe River.
  • Canyon Reservoir water today is selling for $55 an acre foot in the lake. So that you've got to build conveyance facilities, if you're going to take it out in the river downstream why you got to--you got to pay transportation costs in addition to that.
  • San Antonio had a chance to buy 50,000 acre feet at $35 an acre foot in 1976.
  • So it's the--what you have to judge is the relative economics between the costs that were incurred at the time and the costs later.
  • The City of Sherman wanted water out of Lake Texoma, and Dennison bought water out of Texoma lets say at $0.35 a thousand gallons and then Sherman says, Well, we want to buy it.
  • You understand they bought theirs in 1943, Dennison did. Sherman's trying to buy in 1983. So there's 40 years difference in there.
  • For that same $0.35 water, Sherman may have to pay $2.70 because you don't sell it on what the original cost was, you sell it on what's called the utility cost, and the utility cost is, what would it cost you today if you built a reservoir and impounded that quantity of water.
  • I frankly see no objection to building the reservoirs.
  • And a confession I have made is that I--we had the authority when I was Executive Director of the Water Development Board under the 1965 amendment to actually go out and construct reservoirs.
  • I had a dispute with the Corp of Engineers out of New Orleans and I threatened at one point that the State of Texas would buy it--would build the Cooper Reservoir, because thats a federal--that was built with the Corp of Engineers.
  • And I've regretted that we didn't dam the Sulfur all the way to the Louisiana border. We could have done it in the 60s.
  • You can't do it today. And we'd have reservoirs that could yield a million and a half acre feet that to build them today, to build that string of reservoirs would cost 50--would take 50 to 75 or 100 years.
  • We could have built them in the 50s.
  • Now the reason we could have built them--you've expressed some interest in a funding question.
  • The way the Texas Water Development Fund is established--the interest and sinking fund requirements for the State Bonds that are issued to put the money in the fund that's then borrowed are--that fund is supposed to make those payments out of income.
  • If the income is inadequate, it falls through as a constitutional designated demand on the general revenue fund before the revenue estimates are preproduced for the legislature.
  • And so there were some years in which the general revenue fund had to make up the difference between the income to the Water Development Fund and the interest in sinking fund requirements for the bonds.
  • See that's the way I would have funded fresh water inflows to bays and estuaries.
  • I said we will build state owned storage out of which the fresh water inflows will be met and since all the people of Texas benefit from fresh water inflows to bays and estuaries because of the economics on the Texas Gulf Coast,
  • then, that charge will fall through on general revenue fund and all the people of Texas will pay for what is a benefit to all the people of Texas.
  • You could still do that today except that the legislature has since imposed legislator restrictions that say, before the Water Development Board faces that prospect,
  • they must advise the legislature that it's going to be a demand on general revenue fund, or they have committed--the Water Development Board has committed
  • that they will not make expenditures that will fall through as a demand on the general revenue fund.
  • But that constitutional provision's still there.
  • DT: Did you vote that idea back in the 60s?
  • JM: No, not specifically.
  • All--our problem was trying to get fresh water inflows accepted.
  • You cannot imagine the reaction you get from an audience in Lubbock when you tell them that instead of pumping the water to Lubbock, you're going to let it flow into the Gulf of Mexico.
  • We had a consultant, a major engineering consulting firm on--was meeting with an advisory group one time and we were talking about fresh water inflows, and he finally realized what we were doing.
  • He was sitting in a captain's chair rared back on a--it was a wooden floor--and he suddenly realized we were talking about assuring fresh water inflows and he let that chair crash to the floor and he said, "You mean youre going to give the water to fish before you give it to people!"
  • They didn't understand the economics of fresh water inflows.
  • There was a 1957 conference on this campus, I have a record of the meeting, in which waste was described as a bucket of water that escaped into the Gulf of Mexico.
  • The objective, at that point, was to dam every river in Texas so that there was not a drop of water that went out of a Texas river into the Gulf of Mexico.
  • So that you--the Trinity would stop flowing before it got to Galveston Bay.
  • Every river in Texas would be so controlled that no water would "be wasted into the Gulf of Mexico."
  • That's how little understanding there was of the significance of fresh water inflow.
  • You must understand: until you need to know, what's the pressure to learn? And so we didn't know about the contribution of bays and estuaries.
  • We didn't know how much water it takes. We didn't know when the water has to be there.
  • And one of the complications about fresh water inflow also is sometimes there's too much.
  • When the Hurricane Beulah came across the Rio Grande Valley and went up through the Nueces River basin and the Nueces River flooded, it washed out all the gauges on the Nueces.
  • You couldn't know how--you didn't know what the flow was. But when it hit the bay, there were massive fish kills, freshwater fish kills.
  • The fish could not get out of the way of the fresh water fast enough and so they were killed because the bay became too fresh.
  • All the shellfish were wiped out because too much fresh water came into the bay.
  • You can have--the consequence on bays and estuaries can go both ways and the issue is, ultimately, will we so manage the water resource
  • that we, in effect, are managing the bays and estuaries. So that it is as though you turn them into fish nurseries, and managed them just like you would manage growing plants on land, or animals on land.
  • You managed the bays and estuaries for the species that are there.
  • And they're already growing shrimp, you know. That's been controversial, too, on the Gulf Coast where you have shrimp farms growing shrimp.
  • DT: Do you think we have the knowledge to manage a resource like that?
  • JM: More and more. But you--what you must remember is that we're... (misc.)
  • DT: I'm just very interested in the whole idea of intended and unintended consequences.
  • JM: Oh--Enormous unintended consequences of all kinds of things we do. Enormous unintended consequences.
  • Well, do we have the knowledge to manage?
  • You must remember that of all the resources that you can name, we're not going to be able to do without air and water.
  • So, as the population continues to expand, and your water resource is limited, at some point in time, you got to do one of two things.
  • You either got to manage the weather or you've got to manage the water after it gets on the land. And so, necessity will force management. That's what forces management today.
  • I mean, the reason we have--the reason theres an issue, is because of the prospect of shortage. And so it's shortage that drives you, plus excess. The occasional periods of excess.
  • But shortage will drive you--it'll drive you to acquire knowledge.
  • And so the interests that are involved in the fisheries off the--the commercial and sports fisheries off the Gulf Coast will propel us into learning what we need to do to manage the estuaries.
  • Look at what we do with plants. If we don't like the plant we have, we grow one that suits us.
  • If we don't like the animal we have, we grow one that suits us.
  • If we could grow an animal that was all beef steak, we'd grow it. If we could grow one that was all ham, or bacon, we'd grow one like that.
  • Look at what we've done to turkeys.
  • We design them for maximum human use. And necessity will drive us to it in the water arena.
  • It may take longer rather than shorter. But ultimately you have to confront the question, what are you willing to do without?
  • We'll also change uses and we'll change patterns.
  • For example, it's ridiculous to grow sugar beets on the High Plains, because sugar beets require water--more water than--we ought to grow sugar beets some place else.
  • Why should you grow a water--a water--a plant that uses excess water in an arid area. You should not do that. You should--we should make more judicious decisions about where we grow the things we need.
  • And ultimately well have to do that I think.
  • DT: I'd like to talk about groundwater, and your role in Sierra vs. Babbit cases on San Antonio's use of groundwater.
  • JM: Well, with regard to the San Antonio water situation, you need to be aware that in the 60s, in the first water plan, and even before that in San Antonio, there were already recommendations that San Antonio develop alternative sources of supply.
  • It was not an issue--it is not an issue that arose recently. It's been there at least 50 years.
  • And there was litigation between San Antonio and the Guadalupe Blanco River Authority about who would control Canyon Dam.
  • It generated so much animosity that there are still residuals today of litigation that went on 25, 30 years ago.
  • And while San Antonio won the right to get water out of Canyon, when the battle was over, nobody over here would deal with them to negotiate the water.
  • And San Antonio wouldn't negotiate with them either because they'd all gotten mad at each other in the process.
  • I can remember when two personalities that significantly affected the issue, one named Porky Van Kamp(?) with the Blanco River Authority and the other one with the--what was then called the San Antonio Water Board.
  • You couldn't put these two people in the same room together. They wouldn't even speak. They would not even greet one another. And those were the two principals that would have had to have negotiated a transfer of water.
  • So, you had a long history of animosity between these two.
  • But what really precipitated the battle is not necessarily the endangered species.
  • What precipitated the battle is the prospect that pumping in San Antonio and to the west would gradually reduce the flow in the springs--I mean in the aquife--and therefore reduce the spring flow at Comal and San Marcos Springs.
  • The pattern was already set. There used to be springs in San Antonio that flowed. They haven't flowed for years except in very wet years because San Antonio pumps too much water.
  • In other words, they dried up the springs in their own city.
  • The downstream interests on the Guadalupe could see that with low rainfall years or drought, once the withdrawals from the Edwards exceed the average every year,
  • it is inevitable that the spring flow from these two sets of springs will decrease and endanger all the economic development on the Guadalupe River that depends on Guadalupe River water. Including Union Carbide and the other industry that's down at the--down below Victoria.
  • So the Endangered Species Act became the vehicle--with the assistance of the Sierra Club--to force limitations on the withdrawals of water from the Edwards aquifer.
  • This is couched as a--and San Antonio wanted to couch it that way--as a bugs versus people, or animals versus people, or critters versus people battle. It's a people versus people battle.
  • It's who's going to control the livelihood which is represented in the water in the Guadalupe River.
  • And so, they--the forces converged after enormous efforts to compromise.
  • There were--there were ten or fifteen years of efforts to compromise before they ever went to court. And, also, there was forum shopping and where the suit was filed.
  • The suit would never have been filed in a San Antonio federal court. They deliberately picked the Midland court.
  • And since this is the western district of Texas, they could pick which court they filed it in.
  • And I understand that Stuart Henry told the San Antonio people that he was going to file the case in Judge Bunton's court.
  • And Judge Bunton is a Democrat-appointed Federal District Judge, and therefore regarded as more liberal than other judges. And that forum was deliberately picked to file this case.
  • The--to do everything possible to influence the outcome.
  • Now the case started off with some fits and starts, but, it was primarily a move to regulate the Edwards, under the Endangered Species Act, to protect the interest of downstream water flow on the Guadalupe.
  • You couldn't look at the case and say it's purely an environmental--set of environmental litigation.
  • Now, one of the consequences of the Guadalupe Blanco River Authority being a lead plaintiff in the case is that they were instructed by the legislature that they had to fire the General Manager who was there when the litigation was initiated.
  • And they wrote in to the statute that the Guadalupe Blanco River Authority would be subjected to Sunset review out of order to make certain that the GBRA Board was responsive to the legislative attitude.
  • Now are you particularly interested in how I got involved?
  • I'm working in Washington, D.C. as the Deputy Assistant Secretary for Management in the U.S. Treasury Department, and I got a telephone call from Stuart Henry saying, we got another one of these cases down here.
  • Would you like to be involved? And with a lot of pushing and hauling for a while I said, I might be. But I said, there are two conditions before I become involved.
  • Number one, I will not get involved without meeting with the judge. I said, I have to be sure that the judge and I are compatible.
  • That's absolutely critical for me. And the other one is, I will have to have a clear specification of duties.
  • So this went on back and forth. The judge called me and we talked on the telephone. And I arranged to go to Midland to see him. I went to Midland to see him.
  • The rapport was almost instantaneous, and it turns out he was Governor Connally's campaign manager when Connally ran for governor the first time.
  • So, we started off with some background. But then, I actually helped draft the order that specified what my duties would be.
  • I did that because of my experience in Detroit with that litigation, and in Dallas with that litigation.
  • So I agreed to do this, but before the order came out--the way these things normally work is the lawyers, for the parties are asked to suggest names to the judge, so there were other names suggested than mine.
  • But before I started, I got a telephone call from the lawyer representing the City of San Antonio named Jim Matthews.
  • Jim had been on the Attorney General's office staff when I did the lead case in Dallas.
  • He said, we need to talk about this--about this prospect of you becoming--monitor was the title they were using.
  • And I said, well do you want to talk now?
  • He said, Oh, no, no, no, I want to talk in Austin. I want you to come to Austin.
  • I said, well, I'm not coming back to Texas.
  • I gave him a date some time in the future.
  • My wife was still in Richardson.
  • And he said, I want you to come to Austin. We will pay your way down here.
  • So I flew to Austin for a day from Washington, D.C. and went in expecting to meet with Jim Matthews.
  • Instead, we were in a conference room with 9 or 10 other people.
  • In the introductions, I recognized that two of the other people in the room were on the list of potential monitors in the Edwards litigation in Midland.
  • In due course, the President of SAWS [San Antonio Water System] and the lawyer for SAWS arrived. And I was handed a briefing book, a notebook that contained a lot of papers that dealt with the case.
  • And the whole day was spent telling me why I should not become the monitor in the case.
  • And some of it was absolutely brutal. I mean, in both directions. Absolutely brutal.
  • Our son lived in Austin, and still does, but I had had him pick me up at the airport.
  • In fact, I probably came in the night before and spent the night with him, but then he was to pick me up and take me back to the airport because I was flying back to Washington that night.
  • And at the end of this day--and I had no idea that this is what this was going to be--but at the end of this day when I went out to get in the car he said, Well how did it go?
  • And I said, Well I'll tell you. I said, if I get a chance to be monitor in this case, I'm going to take it as soon as it's offered
  • because all the arguments--what--Jim had dealt with me in the lead case, and one of the things that I do in these cases--
  • and this is the reason I wanted to see the judge. In the lead case in Dallas, I was actually approached first by the Attorney General's office.
  • So they were the ones that interviewed me first, but they had other lawyers there representing the other parties.
  • And as that evolved, I had regular meetings with lawyers and when we met, there might be 8 or 10 lawyers representing parties that were there.
  • As we proceeded, why, they began to take the position that they were going to tell me what to do
  • and so we had one of these meetings. And I had my staff in there, at that operation, I had 10 or 12 people working for me and we had a staff in there and they started telling me--
  • and finally, I listened to it for a while and Matthews was there. And listened to it for a while and finally I said, I don't think you understand the role I play.
  • And, by the way, in that case, that judge had never had a person operate like this.
  • But finally I said, you don't understand what my responsibility is. I said, I don't report to you.
  • I report to Judge Het--he's now on the State Supreme Court. I said, and so this is not a session where you're going to prescribe to me what I do.
  • I said, if you think I'm not doing what I'm supposed to do on the court order, your forum is to go talk to the judge.
  • But I said, this is not--I'm not here asking you for your approval. I'm here telling you what it is I'm going to do.
  • We didn't have many more of those meetings after that.
  • And at some point, the lawyers on both sides decided that I was doing what I was supposed to do, which is be responsive to the judge and not responsive to either one of the parties.
  • There's always a difficulty when youre doing this, because you got to remember you're walking into a contentious situation where you've got the contending forces are still operating.
  • So that's the reason I could tell he--they weren't going to run that show. If I got it, they werent going to run that show.
  • I don't--I've never told Jim Matthews this--I've never told him what my reaction was, but that was the wrong thing to do, so far as I'm concerned.
  • Now, what I did then, and what I always do with this, I did it in Detroit with the mayor because I was primarily responsible to the mayor of Detroit, although the judge was omnipresent and manipulating all the time.
  • But, in Dallas, the way I describe it is--there's no space between me and the judge.
  • That space is already occupied. I've closed that space up.
  • If somebody's--the head of the Dallas Water Utilities at one point, decided--he made the statement in working with the city lawyer,
  • said well if we could just get to the judge without Moore there, why we could persuade him that what we're proposing is all right.
  • And when I heard about that, I told the lawyer for the city, I said, You go back and tell Tom Taylor that there is no space between me and the judge.
  • You're not going to get between me and the judge.
  • I said, you should not assume that I do--you should assume that anything I do, I've already cleared with the judge, because I will not do something that I think is contrary to what he would have me do.
  • And if it's important enough, in my view, I would have cleared it with him beforehand.
  • And so, when I started working with Judge Bunton, that's just exactly the way it went.
  • I had enormous latitude working with Judge Bunton, but the reason I had enormous latitude working with Judge Bunton is because on the critical things, I always had them cleared in advance.
  • Now the reason this is important, you cannot work one of these operations if there's any irritation between you and what I call your principal.
  • And so I never had a problem in the Sierra Club case involving the Edwards Aquifer.
  • The other thing is, and when I first met Judge Bunton I said, have you ever had one of these work like this before?
  • He said, No.
  • I said, well, we're both going to have an experience then that you hadn't had before.
  • The--and what I started out doing was not necessarily giving instructions.
  • You start out learning. And when you're brand new, everybody wants to educate you.
  • And what they're doing is, they're educating you to their particular perspective.
  • And so one of the first things I got was an invitation to go down to Medina, Uvalde Counties and travel around on a Greyhound bus with a whole crew of people who were being briefed on a critical need for irrigation water in Medina Uvalde Counties.
  • And so I went, and so on this bus are the principal irrigators that are fighting this lawsuit on that side. We had a great day.
  • Out all over the place looking at the stuff that was going on down there.
  • But everybody wants to educate you.
  • I spent enormous time in either one on one or small groups or big groups. I rarely refused an invitation to come talk to somebody or come talk to some groups.
  • Some groups you absolutely refused to after a while because they're just like a broken record.
  • They've locked onto something that--and there's a pair of these in San Antonio--they've locked onto something and nothing else is going to deter them.
  • It's a--their single minded purpose is to prevail with their attitude.
  • DT: Can you give an example of that?
  • JM: The two people are Carol and Kirk Patterson.
  • Carol Patterson is regarded by a segment of the population of San Antonio as an expert on the Edwards aquifer. And she is expert on one thing, and that is, San Antonio should pump it dry.
  • And her husband is a lawyer, and she was on the Old Edwards Underground Water District Board and now is on the Edwards Aquifer Authority Board.
  • She is an opponent of the statute that created the Edwards Aquifer Authority Board and she serves on the board that created the statute.
  • I told a group in San Antonio in a private meeting that one of the greatest risks they faced was that the opponents to the Edwards Aquifer Authority would, in effect, co-opt the board.
  • They would eventually elect enough people to where they would run the board.
  • And it is--as a practical matter, if you want to know what the position of the City of San Antonio is on a water issue, the chances are that Carol Patterson is the one that has influenced the issue.
  • She influences the--her own opponents.
  • Whenever they are formulating--I told this to the lawyer for SAWS one time, I said, How does it feel working for Carol Patterson?
  • He says, What do you mean?
  • I said, she determines everything you do. I said, she determines what you do because whenever you're thinking about doing something,
  • you're always thinking, how's Carol Patterson going to take this, or what's Kirk Patterson and Carol--what are Kirk and Carol going to do? Or what's Kay Turner going to do about this?
  • And Kay Turner and Carol Patterson and Kirk Patterson are all aligned together and they have an entourage that follows them wherever they go
  • and so, anybody in San Antonio that is formulating a water policy is formulating it within the context of how you--how will this play with Kirk and Carol Patterson
  • and potentially Kay Turner, because she's going to run for mayor next time against whomever's in there.
  • This is the way you can negatively influence policy.
  • Now she's on the Edwards Aquifer Authority Board and so now she has a board made up of 15 members, and the board members, I know, spend an inordinate amount of their time thinking, how do we get around Carol Patterson?
  • How's this--how's Carol going to react to this?
  • And so in effect, she influences the way they go simply because she's there.
  • And if they can get enough members on that board that think like she does, they'll--the board will continue to exist but they'll absolutely frustrate the implementation of the statute.
  • And you can do this. You can co-opt a board by getting enough members who oppose the philosophy under their authorizing statute and they can absolutely ruin the--and contradict the intent of the legislature.
  • And that's been reflected. Senator Armbrister who was the major senate sponsor of the bill that created the Edwards Aquifer Authority was absolutely infuriated with them before this last session of the legislature.
  • Absolutely--they did--they repeatedly did things that were absolutely infuriating to him and, in some cases, did it knowingly and deliberately.
  • And so what you end up doing is you create--then, you create opponents sitting in the legislature of the thing they've created.
  • And so, Carol Pattersons, in effect, gotten the board in a situation where the sponsors of the legislation that create the board are opposed to the way that agencies function.
  • DT: What do you think the outcome of the litigation of the Edwards Aquifer will be?
  • JM: If... (misc.)
  • JM: If the people in San Antonio do not, at some point, decide they're going to recapture their share
  • see what you have is seven members from Bexar County, two members from Comal, two members from Hayes, two members from Medina, two members from Uvalde.
  • That's eight outside Bexar. So you could think that the Bexar County delegation, if it were united in seven, could get at least one of the other eight to go with them and therefore, dominate the board.
  • But that isn't the way it works. The seven in San Antonio are generally split 4 to 3.
  • So the board members on either side have recognized the split, and so they ally themselves with the three, depending upon what the issue is,
  • and so the board's actually being run by the minority of three in Bexar County and their liaisons with some in the outside counties.
  • You understand what I'm talking about?
  • Now the outcome, unless the people in San Antonio decide they're going to get a San Antonio delegation, a Bexar County delegation, that is consistent with what their view ought to be, ultimately you have--you're faced with one of two things.
  • The legislature will shift the regulation of the Edwards to the Texas Natural Resource Conservation Commission, or they'll abolish the agency, in which case, you start all over again.
  • They'll try to abolish it and replace it with something else.
  • It's a classic kind of example of a rear guard action that is trying to eliminate the inevitable.
  • See, time will solve part of the problem. They can't last forever and so time will solve part of the problem.
  • A drought would help because if you've got a drought--
  • I watch the spring flow figures almost daily--almost weekly, if not daily, to see whether or not we're approaching a drought that's going to precipitate a complication in the area.
  • Now I've skipped--I've jumped ahead of the litigation part of it.
  • What then happened is, I initially started out just as a sort of data gatherer. We--I was supposed to feed information to the judge.
  • Well, of course, everybody wanted to tell me everything because they saw me as a conduit.
  • Well if I can just get him to tell the judge--then you create what's--what's called an ex parte communication channel so that you pass information to the court that you couldn't do officially without telling all of the other parties.
  • That's one of the first questions I settled.
  • I asked the judge, I said, do I have to tell all the parties every time I go see one of the others.
  • No, you don't have to do that.
  • So in it--nothing I did was an ex parte communication. I didn't have to tell anybody what I was doing except the judge.
  • And then the judge--I gave the judge a report and it was up to his discretion as to whether he mailed it to the parties.
  • And I gave him regular reports about what I was doing.
  • Then drought occurred.
  • So in 1994, we had the first precursor of crisis and I was instructed to produce in thirty days a drought management plan for the Edwards.
  • And I did that, and when it came out, Mayor Wolf's headlines in the San Antonio Express News was, "Moore declares scorched earth policy on Edwards"
  • and that's the way they regarded it because you--once you're into a drought, you have to take draconian measures, in this case for the Edwards, you have to take draconian measures to do anything.
  • You got to--you have to do something that's going to produce an almost instantaneous result.
  • You can't wait for time because the spring flow's going down. And it can go down 10 cubic feet a day.
  • And so if you're at 300 cubic feet, 200 cubic feet is the critical point, and then below that, 150 is the next critical point.
  • DT: Flow at which spring?
  • JM: Flow at Comal. Comal is generally the indicator spring. If you protected Comal, you generally have protected San Marcos.
  • And you must remember San Marcos is below Comal so it'll stop flowing there before it'll stop flowing here, plus there is--this one, remember, has never gone dry in recorded history.
  • And so there is a source of flow that may bypass some of the channels that provide flow at Comal. But Comal is the one we generally use as the trigger mechanism.
  • Well, it rained, and it--and the irrigation season in Comal--in Medina, Uvalde Counties ended so we got through '94.
  • In '95, I told the judge, as early as March, I said, We're headed for trouble again.
  • So we developed another drought management plan. And then, he appointed the lawyers panel to do a drought management plan and he adopted that one on a stand-by basis because it was done by the lawyers and the litigation.
  • What I did was I told the judge I said, Your Honor, what you ought to do--I said, and I wrote this out to him on a sheet of paper with nothing on it so that he could use it and throw it away--
  • I said, What you ought to do is appoint the lawyers--and I actually suggested the names of the people he should appoint--and let them come up with a drought management plan for you.
  • So when we got in court, instead of doing it as though it had been his idea, he says, "Now the monitor has suggested..."
  • and off he went and he appointed the lawyers panel and so the lawyers came around to me and said, What in the world are you doing?
  • I said, look, you all have responsibility to this court. Give him a solution to what you ought to do.
  • Well they--he adopted the lawyers panel on a stand-by basis but we didn't have to do anything in '95. '96, it really got critical.
  • In the interim, San Antonio had been trying to build a reservoir called Applewhite below San Antonio, on the Medina River. The program to promote the reservoir was an absolute disaster.
  • They gave all the wrong reasons for why you build it, and made all kinds of promises they could never have lived up to in the promotion of it.
  • For example, that it would be a constant level reservoir. You can't build a constant level reservoir for water supply.
  • When it gets dry, you're going to pump water out of it and when you pump water out the level goes down.
  • It got tagged by Kay Turner and Carol and Kirk Patterson as a sewage reservoir.
  • They were going to collect sewage there from the treated San Antonio wastewater and pump it back to the low income Hispanic residents in Southwest San Antonio so the poor people in San Antonio were going to get sewage water
  • and the people in the North and Northwest--the rich people--were going to get pure Edwards water, while all the other people were going to be forced to drink this sewage water.
  • So they twice killed the reservoir.
  • And they had been telling me--this was during the drought of '94, they'd been telling me, as soon as we get this reservoir, vote behind us where we can go ahead and build this reservoir, going to solve the problem.
  • The election failed. So I got my first contact from the San Antonio Water System.
  • The Chairman of the Board and the President called and said, We'd like to come to Dallas and meet with you about this vote. So the following week they were there. Came in on Tuesday, Wednesdays.
  • So they came in and they gave me all the reasons why this vote failed.
  • And when they got through with that, I said, now what are you going to do?
  • They had no fallback plan. I could not believe that they were so sure that this vote was going to pass that nobody had ever played the "what if" game. What if it fails?
  • Well I had suspected that's what had happened and so in the week before the appointment and the time between the appointment was fixed and the time they got there
  • I had put together with a young man I had working with me, a proposal and cleared it with the judge that we establish a section 10(a) Habitat Conservation Plan Committee and start drafting a Habitat Conservation Plan under the Endangered Species Act.
  • And had the names of all the agencies that would be represented and so on.
  • And I had that with me when we were--when I was meeting with these two other people and so when we got to that point, I said, well let me make a suggestion to you.
  • And I pulled these things out and the first condition was, that if I proposed this and the judge did it with an order, that the City of San Antonio would not appeal.
  • And I said, I want your mayor to call me and tell me that you will not appeal an order that sets up this group. And then I had the sequence by which I would contact the agencies to get them to participate.
  • And these were primarily water agencies beginning in Uvalde County, Medina County, Bexar County.
  • I had to go to the City Manager's or the water utility person in Comal County and the City Manager in Hayes County here in San Marcos.
  • So the mayor called and he first wanted to apologize about the newspaper stories.
  • And I said, Mr. Mayor, I understand exactly what you're doing. It doesn't bother me at all. That's fine. I--don't let that worry you.
  • But he says, we will not appeal.
  • So then I started my meetings with these water entities. I started in Uvalde County, Dolph Briscoe, and Governor Briscoe and I go back far enough to where my father and he were seat mates in the Texas Legislature.
  • They were in--well, I take it back--he came to the legislature the year after my father was defeated. That's what it was.
  • But my father had written something, a piece of legislation that became the farm-to-market road program. Became the Colson Briscoe Farm-to-Market Road Program.
  • Had my father been reelected, that would have been the Colson Moore Farm-to-Market Road Program.
  • And I told Governor Briscoe at one time, I said, you know, my father's the one who really wrote the law the created the Farm-to-Market Road Program and I said, had he been re-elected, his name would have been on that bill instead of yours.
  • Briscoe's political reputation was based on Colson Farm-to-Market Road Program and--but at any rate, so he and I had some prior contact. But he brought in a man named Rodney Reagan, who was an alter ego of his, and he and the governor were in business together.
  • But that meeting, I got their--they were kind of non-committal, but they might.
  • So I went on to the Uvalde District and there they had a woman General Manager so I got enough encouragement to proceed.
  • Went to the Edwards Underground Water District which included Bexar County, Comal, and Hayes because Medina and Uvalde had seceded from that district in a dispute over a drought management plan some years before.
  • So I got a general approval from them and then, lo and behold, I get back to Dallas and I get a telephone call and they want me to come back and meet again in Medina County.
  • And I said, what for? So I went down to another one of these meetings that was--started out unfriendly and we eventually got the approval of the Edwards Underground Water District to participate.
  • Then I got New Braunfels and San Marcos. And so we started this draft Habitat Conservation Plan. We ended up producing a 330-page document that listed all the potential water supply alternatives for the region. And gave estimated costs for every region, and...
  • End of reel 2018 End of interview with Joe Moore, Jr.