Friday, January 14, 2011

Who Owns the Water in Texas? Groundwater

Water is basically free, right?  And it belongs to the people, so they have it to use as they see fit, right?  Well, not really, Water Law in Texas is a complicated matter and crucial to Texas' future. This is the first of a three part series on Texas Water Law.

There are three distinctions for water in Texas, Groundwater (water that percolates down into the soil), surface water (rivers, lakes, streams and creeks), and drainage water (runoff water after a rain storm.) 

Currently, groundwater is technically owned by the property owner.  The landowner can pump and capture the water under his property.  The landowner can even sell the water he pumps out of his property.  However, if his neighbor pumps all the water out of the ground before he builds a well, too bad!  In Texas, this is called "the law of the biggest pump."

"The law of the biggest pump" is currently effecting the West Texas town of Fort Stockton. The town has been battling for water with former gubernatorial candidate Clayton Williams over his plans to sell water from the town's main water supply, the Trinity Aquifer, which is already under stress from naturally dropping water levels.  The Trinity just happens to run under William's property and he plans sell the water to a town 100 miles away, leaving Fort Stockton high and dry.  Back in the late 1940s, (and strengthened in 1985) the legislature set up water conservation districts to provide some limited regulation of ground water use.  Luckily, Williams rights to the water only extends as far as land irrigation based on a permit he received from the Middle Pecos Groundwater Conservation District.  But the conservation district could still rule in Williams favor and allow the water to be sold.  This would set a dangerous precedent for towns in West Texas with limited water supply.

The Middle Pecos Groundwater Conservation District isn't the only one in a quandary.  The Edwards Aquifer Authority (EAA), set up in 1993, regulates water use over the Edwards Aquifer in all or part of 8 counties near San Antonio.  The water authority has a legal mandate to manage, enhance, and protect the Edwards Aquifer system.  It does this partly by issuing water use permits to landowners throughout is 8,800 acre district.  Since the Authority is charged with preserving and conserving the water in the aquifer, it limits the amount of water any one landowner can pump.  Since 1996, the EAA has been defending it's belief that ground water should not be owned by the property holder in a legal battle with
Burrell Day and Joel McDaniel [who] requested a permit to pump 700 acre-feet from the ground. The two wanted to start a peanut and oat farm on the 350-acre ranch they had recently purchased. Their plan was to use the free-flowing water from a well drilled by the previous owner that was filling a 50-acre man-made lake on the property. The EAA denied their application for groundwater.
The EAA did issue them a permit that allowed Day and McDaniel to pump 14 acre feet per day.  (One acre foot of water can provide enough water for the typical single family home in San Antonio for an entire year.)  Day and McDaniel sued EAA, claiming the authority was regulating them out of their ownership of the groundwater they legally own. The case has been in the courts ever since, and just this last February finally made it to the Texas Supreme Court.  The amicus curiae (friend of the court, interested parties who are not involved in the suit, but believe the courts decision could effect them, i.e. other farmers in the EAA district) briefs are still being filed for the case, and so far the court has not issued any opinions.  The Texas Supreme Court's decision in this case, could radically change Texas Ground Water Law.
In general, the other courts agreed with the EAA and the outcome of the permit process. But the state Court of Appeals ruled landowners do have “some ownership rights in the groundwater.”

On Wednesday [Feb 2, 2010], the EAA argued that if the groundwater is owned by the landowners, then it and the roughly 95 groundwater conservation districts in the state would be open to a lawsuit every time they tried to limit pumping or be forced to compensate landowners.

“This is no small question for the authority,” the EAA lawyers wrote in their brief to the court.
The EAA would have its “legs pulled out from underneath it” if the court ruled against it, EAA lawyer Pamela Baron told the justices.
In order to remedy this type of situation, State Sen. Troy Fraser, R-Horseshoe Bay, is submitting Senate Bill 332 this legislative session to change groundwater rights.  He wants the groundwater rights to be given to the property owner before he puts a well on his property.  The Texas Water Solutions blog takes issue with the bill.
According to Senator Fraser, Senate Bill 332 “would clearly state that landowners have a vested ownership interest in the groundwater beneath their property…[G]roundwater conservation districts could still require a landowner to get a permit and limit the amount of groundwater that can be produced. However, the legislation would prevent a district from "taking" a landowner's right to capture the water beneath the land.” 
This all sounds very reasonable and benign, but the reality is that this legislation could undermine the ability of groundwater conservation districts (GCD) to effectively manage the very resource that they are charged with protecting.  If every landowner has a vested right to the groundwater beneath their property how can a GCD manage that land owners’ access without it being considered a taking?
Fair and equitable use of groundwater will likely be a continuing, contentious, and sometimes volitile issue between cities and farmers/ranchers throughout this century, as Texas population grows and Climate Change slowly makes Texas a dryer and dryer place. 

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