GROUNDWATER RIGHTS
The Rule of Capture: Groundwater Theft
By Lauren Stucky
The Texas Supreme Court ruled in the 1904 East Case that there is no liability for withdrawing groundwater to the extent that others’ wells are depleted. This is still the law in Texas, but in the most recent ruling (Sipriano v. Great Spring Waters 1999), the Texas Supreme Court stated, “We see no reason ... for the Legislature to feel constrained from taking appropriate steps to protect groundwater.” Justice Hecht stated, “ for now--but I think only for now--East should not be overruled.” This is interpreted to mean that the Court will modify the rule of capture if the Legislature does not. Likewise, after pumping caused Comanche Springs to stop flowing (Pecos County WCID No. 1 v. Williams 1954), the El Paso Court of Appeals noted that,“It may be that the answer to this unhappy situation is legislative.”
Groundwater conservation districts in Texas are empowered to limit pumping, but they also have the authority to allocate the water under one person’s land to someone else in large amounts. This occurs every time a district issues a permit to withdraw water in excess of an equal amount of water per acre of land owned overlying an aquifer.
The problem was recognized by Dr. Gilliland of Texas A&M University in his April 2006 Tierra Grande article--“Some of these rules protect historic use but indicate that districts intend to cease issuing permits at a future date. Such an action would bar all landowners who do not possess permits from drilling wells that require permits. Those owners would no longer have access to water under their land unless they have exempt wells.” There are currently many exempt wells that have been depleted by others over pumping.
According to Larry McKinney in his July 2005 Texas Parks & Wildlife article, “As long as we manage groundwater under the Rule of Capture doctrine, the fate of many springs is governed by the biggest straw. That doctrine was based on a 1904 Texas Supreme Court decision in which the court found that the movement of groundwater is ‘so secret, occult, and concealed that any attempt to administer any set of legal rules … [would] be practically impossible.’”
In the East, Sipriano, and Williams Cases, there were no mysteries concerning the impact of overpumping on groundwater, and groundwater was, in fact, taken from landowners. Most importantly, these cases define groundwater as private property, while the Constitution prohibits the taking of private property.
In East, the court was concerned about possibly impeding econonomic development. As in the 2005 Kelo Case concerning eminent domain, economic development was considered justification for violation of the Constitution. Texas desperately needs legislation modifying the rule of capture. Without a drastic change in water law, landowners will continue to lose the water under their land.
Groundwater Legislation: Crucial to Landowners
By Lauren Stucky
In recent years, the Texas Legislature has selected groundwater conservation districts as the preferred method of groundwater management and has encouraged the increased formation of such districts.
In 2005, the Legislature passed HB 1763, requiring each district to submit a management plan specifying their “managed available groundwater” based on “the desired future condition of the aquifer” to the Texas Water Development Board. Furthermore, this legislation requires that each district issue permits until “the total volume of groundwater permitted equals the managed available groundwater....” Thus, a district is required to give out all of their permittable water regardless of the amount of land someone owns overlying an aquifer.
Last session, Representative Charlie Howard filed TLC’s HB 3580, which would practically eliminate the rule of capture by preventing districts from issuing permits in the future that allow one landowner to take water from beneath the land of another landowner.
TLC’s proposed legislation would define groundwater rights for future wells as the right to an equal amount of groundwater per acre of land owned overlying an aquifer excluding water used by historic use wells. It would define groundwater rights for existing wells in use in the last five years as historic use with the obligation to reduce withdrawal if other historic use wells are deprived of water. In addition, this legislation would provide that a person who violates the above described rights by over pumping may be required to reduce pumping. This legislation would also require historic use wells to no longer exceed equal rights per acre owned overlying an aquifer if their use (for example, irrigation) changes. TLC’s groundwater legislation also provides that all wells could be required to reduce pumping in proportion to a drop in aquifer recharge.
Groundwater conservation districts currently have the authority to assemble the information needed to enforce the provisions of our proposed legislation. TLC appreciates Howard’s introduction of our bill this session and will seek introduction and passage of a similar bill next session.
For the full text of HB 3580, please visit:
http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=80R&Bill=HB3580