Water is water, except in Texas.
All of Texas’ freshwater comes from precipitation. Where it goes when it falls makes all the difference in the world.
Surface water, meaning creeks, rivers and lakes, is considered a public resource commonly owned by the people of Texas. Simple enough.
Groundwater, that is all water that you can’t see below the surface of the Earth, is a whole other matter. That water, contained in aquifers and bolsons (Spanish for “bag,” in this case meaning hollowed basins), found tens, hundreds and sometimes thousands of feet below the surface, is regarded like oil or other minerals—a resource owned by the owner of the land above it.
In 1904, the Texas Supreme Court determined in the Houston & T.C. Railway Co. v. East case that property owners could pump as much groundwater as they pleased without regard to the effects on neighbors’ wells. Groundwater, the court ruled, was too “secret, occult and concealed” to regulate. No one understood how groundwater worked, so the court applied rule of capture, a remnant of British common law, to the case.
In February 2012, the Texas Supreme Court’s ruling in the Day v. Edwards Aquifer Authority case affirmed that the property owner of the ground also owned the water under that ground.
The problem with both decisions is that groundwater does not observe property lines. Some aquifers are so large they span several counties. Some, hydrologists have learned over the past century, are actually moving rivers. Plus, no matter how groundwater moves, what’s clear is more water is being pumped from underground than is being put back in through recharge.
That explains why other states in the American West have developed different laws and strategies regarding management of groundwater. Texas is the only Western state where rule of capture is law. That may work well for property owners wanting to sell their groundwater, or sell their mineral rights, but not so great for most of the rest of the population that relies on water as a life source.
Where water is abundant, rule of capture works fine, because whatever water is pumped out from underground is usually replenished. But in arid, water-short regions, such as all of the state west of the 98th parallel (roughly following U.S. Interstate 35), the devil’s in the details. Consider this: It’s perfectly legal for a single landowner, taking advantage of his or her property rights, to drain so much groundwater that neighbors’ wells go dry or the groundwater underneath their property disappears.
The most notorious case illustrating that point is when Clayton Williams Sr. and other businessmen pumped groundwater below land they owned west of Fort Stockton to create a pecan orchard in the desert. Because of their actions, Comanche Springs, the largest springs in West Texas, went dry, forcing more than 200 truck farms east of town to go under. Williams’ right was upheld by the Texas Supreme Court in 1954.
The Texas court has since reaffirmed property owners’ right to underground water; in 1999, the court upheld the right of Ozarka to mine a spring in East Texas for commercial purposes, even though it caused neighbors’ wells to go dry.
The Texas Supreme Court’s decision in early 2012 affirmed that Texas landowners own the groundwater “in place” beneath their property, and that they may have a valid claim for compensation from the government if regulations go too far in limiting their ability to capitalize on their groundwater.
Still, there are limits to unregulated pumping.
The withdrawal rate of pumping groundwater from the Ogallala Aquifer—one of the world’s largest underground aquifer systems that covers most of the Great Plains, including the Texas Panhandle and South Plains—has exceeded recharge of the aquifer through rain and snowmelt over the past century. Parts of the water table in Texas have been drained, while less than half of the underground aquifer’s original ground water supply remains. Pumping costs have increased to the point where many Texas farmers have quit irrigated farming altogether, even if groundwater is available. In other words, pumping without regulation is unsustainable.
In 1993, Federal District Judge Lucius D. Bunton III ordered the U.S. Fish and Wildlife Service to set pumping limits in the Edwards Aquifer—which at the time supplied San Antonio with all its drinking water—to protect endangered species dependent on the Comal and San Marcos springs, the biggest spring systems in Texas.
“Without a fundamental change in the value the region places on freshwater, a major effort to conserve and reuse Aquifer water, and implemented plans to import supplemental supplies of water, the region’s quality of life and economic future are imperiled,” Bunton wrote in his decision.
Bunton’s ruling led to the creation of the Edwards Aquifer Authority by the Texas Legislature. The authority regulates pumping from the Edwards Aquifer.
In 1997, the Texas Legislature passed Senate Bill 1, establishing statewide water planning for the next 50 years. The bill and subsequent legislation have stated that the best means of local management of groundwater are the 101 groundwater districts established across the state. The rub after the Texas Supreme Court’s 2012 decision is, if a groundwater district or other government entity limits a landowner’s desire to pump, the landowner can sue the district for a “taking” of private property.
“While the Texas Supreme Court’s ruling in the Day case makes clear that landowners own the groundwater in place beneath their property, it is much less clear how far a groundwater district may limit pumping before it amounts to a taking of private property,” says attorney Tom Mason, the former general manager of the Lower Colorado River Authority who now specializes in water law in Austin.
Which means groundwater districts, regional planning groups and state water authorities, in order to ensure sufficient water supplies 50 years from now, will have a hard time managing groundwater in a way that allows long-term, sustainable use by a variety of landowners/pumpers.
So, groundwater is a property right, and as such requires a whole lot of trust and awareness of the unwritten “law of the biggest pump” when it comes to management of groundwater resources locally, regionally or statewide. Otherwise, if all property owners exercised their right to pump, there wouldn’t be any groundwater left to fight over.
Surface water, on the other hand, is owned by all Texans, even though despite the different laws, really, it’s all the same water.
Joe Nick Patoski is the author of nine books, including Generations on the Land: A Conservation Legacy (Texas A&M University Press, 2010). Patoski, an avid swimmer and kayaker, lives in Wimberley, in the Hill Country.