Water Policy in Legislature Rode on One Word

By Joe Nick Patoski - from New York Times Texas Tribune

With the Big Dry upon us, the longstanding fight over the water percolating under the surface in Texas’ 9 major and 20 minor aquifers was bound to get contentious before the end of the 82nd legislative session. And it did, at least for a while, because of a single word.

The Republican majority’s agenda for the session included numerous expressions of fealty to property rights. Among them was Senate Bill 332, which affirms groundwater as property right courtesy of the “rule of capture,” a quirky Texas law that gives landowners ownership of the water below the surface of their property. When he introduced the bill, Senator Troy Fraser, Republican of Horseshoe Bay and chairman of the Senate Natural Resources Committee, described groundwater as a “vested” property right.

That modifier threatened to upend a delicate balance between landowners and the 97 local groundwater conservation districts charged with regulating the below-the-surface reservoirs of water that supply more than 60 percent of what the state needs. As written, groundwater as a “vested” property right would have trumped the ability of groundwater districts to protect a shared resource.

Texas is the only Western state that regulates its groundwater through the rule of capture, which was adopted from English common law when Texas became an independent republic in 1836. The rule (also called the Rule of the Biggest Pump) was first upheld by the Texas Supreme Court in the landmark Houston & Texas Central Railroad Co. v. East decision in 1904 and was most recently reasserted in 1999, after property owners in Henderson County unsuccessfully sued the neighboring Ozarka Water Company for pumping 90,000 gallons of groundwater a day, severely affecting the water table.

Mindful that an individual could create quite a mess by invoking the rule of capture but not inclined to do away with a historic property right, the Texas Legislature tweaked the rule in 1949 with Chapter 36 of the Texas Water Code, which allowed for the creation of groundwater districts, the preferred method to regulate groundwater use in a specific area.

To many property owners, though, such districts have not provided enough protection.

“Water planning needs to start where the first drop of rain falls on the ground,” said David K. Langford, a former vice president of the Texas Wildlife Association and the owner of a 13,000-acre Hill Country ranch that has been in his family for seven generations.

Mr. Langford supported S.B. 332 because, he said, it would allow him to conserve the groundwater on the ranch. “Conservation needs to have the same weight as users do,” he said. “We asked to re-establish the property right so conservation would have as much standing as a developer who buys a ranch next door to build a golf-course community.”

As the session wore on, Mr. Fraser’s House colleagues stripped the word “vested” from the bill, disappointing advocates of property rights but melting away opposition from groundwater districts.

“ ‘Vested’ would have created a constitutionally protected property right, making a statute of common law,” said Gregory M. Ellis, the former head of the Edwards Aquifer Authority and now a lawyer who represents several groundwater districts. “The threat would not have been to groundwater districts but to the water supply itself. Every landowner would be entitled to as many wells as they wanted, and they could pump as much as they wanted.”

Once the new law takes effect, Mr. Ellis said, “the districts can manage with more flexibility around the demand and have the tools they need to get the job done.”

Except for S.B. 332, the 82nd session was remarkable for being unremarkable when it came to water, one of the most crucial issues that the state will have to grapple with over the next century. In particular, Mr. Ellis admitted disappointment that the Legislature did not take on the bigger challenge inevitably facing Texas groundwater conservation districts and all of Texas: rising demand and declining supply.

“Eventually, a district will either have to stop issuing permits or reduce pumping to accommodate new permits,” he said.

Unfortunately, Mr. Ellis added, legislation “doesn’t create more groundwater.”

Only rain can do that. Until that happens, all that water users, sellers, property owners, state legislators and the 97 groundwater conservation districts across Texas can do is conserve, hope, pray and watch the skies overhead.