The Q&A: Mike Gershon

With each issue, Trib+Water brings you an interview with experts on water-related issues. Here is this week's subject:

Mike Gershon is a partner and water lawyer at Austin-based Lloyd Gosselink and serves on the firm’s executive committee. He is former chairman of the State Bar of Texas’s Environmental and Natural Resources Law Section, and former chairman of the San Antonio Bar’s Environmental Law Section. He is general counsel to several water utilities and groundwater districts and represents cities, other public entities, landowners and businesses.

Editor's note: This interview has been edited for length and clarity.

Trib+Water: What are the issues in the Legislature that your clients are concerned about now? 

Mike Gershon: The Texas Legislature has been very active this session on water issues. There is an ongoing debate about how we will assess groundwater availability in our state and how we will allocate scarce resources in groundwater. The Legislature is also looking at what remedies are available to challenge various types of environmental permits, whether it is appropriate to relax regulations and dealing with brackish groundwater.

Also, in the courts, we have seen a number of decisions come down over the course of the year. One in the last few weeks deals with groundwater takings. The Texas Supreme Court denied a petition for review in a first ever takings case. That is a big deal because many stakeholders are still trying to sort out what is meant by private property rights and groundwater. If your private property rights are regulated, whether you can be compensated for a taking.

Trib+Water: Has this sense of pressure among stakeholders to secure resources increased, or has it been at a heightened level throughout the drought?

Gershon: It has increased for two primary reasons. The historic ongoing drought is one. The booming economy throughout Texas in many industries is the second.

The booming economy is naturally increasing demand for water. We are seeing stresses on the supply side, particularly on surface water, which is most directly impacted by this drought. With the increasing demand for water because of our vibrant economy, there are a whole host of challenges for those who have to supply that water, to make adjustments to their short term, midterm and long term plans.

Trib+Water: What factors led to the heated conflicts seen recently?

Gershon: In my career, I have seen a significant evolution in water law that really began in a significant way in 1997 when the Legislature passed a near 200-page bill. Symbolically, since 1997, we have seen the Legislature evolve that bill by passing several more that together rewrote the water code. Since then, the focus has been on planning for a vibrant economy, and recognizing that not all areas of our state are blessed with significant supplies of water.

Here we are in 2015, facing drought, facing more growth than was anticipated. Those plans are being re-evaluated.

Trib+Water: What are the problems your clients are bringing to you hoping to resolve through litigation?

Gershon: Starting with utilities, my firm represents hundreds of public and private water and wastewater utilities. They are having to make adjustments to their hydrologic assumptions impacted by the drought. If the lakes aren’t as full and the rivers aren’t flowing as much as they thought, they are having to make adjustments to ensure reliable water supplies to their customers and to the public.

The businesses, farmers, power generators and other folks that we represent are finding it necessary to rely more heavily on groundwater. We are seeing the drought impacting those plans in a way that causes a heavier reliance on groundwater, when there is little rainfall.

The regulators that we represent, their challenge is to figure out how best to allocate and restrict scarce resources, in a fair way.

Our Texas Supreme Court has recently declared that groundwater is most definitely owned in place. It is a private property right. It has to be allocated in a fair way. Allocating a scarce resource among lots of folks is a challenge when demand could exceed supply.

Trib+Water: What is the role of litigation in these conflicts?

Gershon: Does litigation always solve the problem? Not necessarily. A legal decision from a court surely provides guidance to the litigants and folks all over the state.

My perspective is that when you talk about conflicts erupting among stakeholders, often the conflict is escalated from failure of the parties to listen carefully about other stakeholders and opponents' positions, or the regulators' concerns. The conflict escalates because of an overconfidence. The perspective that you are right, others are wrong and you are going to win.

With water issues — whether it is water quality, quantity, permitting — there are typically differences of opinion among scientists. The law is still evolving on many aspects of surface water and groundwater permitting and endangered species issues. That tells us that there are open questions and untested legal standards. The question is if folks can sit down and try to come up with workable solutions prior to getting into years' long, extensive litigation with uncertain outcomes.