Neighbors who pump water from the same formations beneath their land have long argued over that water. The stakes have only become higher as cities and industries, watching their surface water supplies dwindle, see groundwater as a solution to the demands of explosive population growth.
But Texas law governing groundwater is murky, and a recent state appeals court decision signals that only years of expensive legal battles will provide clarity. The ruling in Edwards Aquifer Authority v. Glenn and JoLynn Bragg is the first instance of a state appeals court finding that groundwater regulation resulted in a violation of property rights under the Texas Constitution — and it fuels an already fiery debate over whether groundwater can be protected alongside private property rights.
“This whole issue will ultimately be resolved by litigation and not legislation,” said Andrew Sansom, executive director of the Meadows Center for Water and the Environment at Texas State University. “A lot of it will be between private landowners, both of whom have been told by the state that the water is theirs.”
Texas owns the water in rivers, streams and lakes above ground and governs its allocation. But below the surface, everything changes.
In 1904, the Texas Supreme Court declared that groundwater is subject to the “rule of capture,” which generally means landowners can pump however much water they want underneath their property and are not liable for depleting a neighbor’s underground supply. But the court also noted that it had practically begged the state Legislature to deal with the issue, to little avail.
Nearly 50 years later, lawmakers had passed a bill putting regulation of underwater resources in the hands of local groundwater conservation districts, or GCDs. Drawn across political boundaries rather than aquifer lines, nearly 100 of these districts exist today, and all have different rules with little state oversight.
After nearly a century of avoiding a ruling on the issue, in 2012 the Texas Supreme Court finally ruled in the historic Edwards Aquifer Authority v. Day case that regulations limiting groundwater pumping rights could result in “taking” property rights under the state Constitution. The 4th Court of Appeals’ decision in the Bragg case last month found that such "taking" had occurred in Central Texas.
The very existence of the authority, one of the largest and most powerful groundwater regulation bodies in the state, illustrates Texas’ underwater conundrum. A federal judge ordered its creation in 1993, finding that over-pumping of the aquifer without proper management was threatening endangered species. But Glenn and JoLynn Bragg had invested more than $2 million to grow pecans on 100 acres over the aquifer long before that. When the authority restricted the amount of water they could pump under that land, they sued, saying their property rights were violated.
The state’s Fourth Court of Appeals agreed. Writing the court’s opinion, Justice Sandee Bryan Marion said last month that the restriction “forces the Braggs to purchase or lease what they had prior to the regulation — an unrestricted right to the use of the water beneath their land.” That outweighs even “the importance of protecting terrestrial and aquatic life, domestic and municipal water supplies, the operation of existing industries and the economic development of the state.” The authority has said it will appeal the ruling.
The decision has prompted groundwater managers, environmentalists and water lawyers across the state to fear that any regulations they impose will land them in court. But at the same time, failing to impose regulations could harm the aquifers to the point of depletion, or threaten area wildlife.
“Despite our best efforts, the aquifers are dropping,” said Greg Ellis, a lawyer for many GCDs and former general manager of the Edwards Aquifer Authority. The authority has asked its users, which include the city of San Antonio, to reduce demand by 35 percent this year amid the drought. “The district has to have the ability to cut people back,” he added.
Property advocates disagree. “Pay them,” said Paul Terrill, the Braggs’ attorney. “You took their property. Just pay them.” (How much the Braggs are owed is still up for debate, according to the court ruling.)
But cities and industries looking for new groundwater supplies are unlikely to be satisfied with compensation. They are pushing state lawmakers to further limit local groundwater regulating abilities, and in some cases, transfer rulemaking authority to the state, which already allocates surface water.
“You need regulation, but you’ve got to get to the right type of regulation,” said Steve Kosub, a lawyer for San Antonio’s water utility, whose ratepayers provide the bulk of the Edwards Aquifer Authority’s budget and will likely shoulder most of the cost should the authority ultimately lose the Bragg case. “We would like to see laws that would increase the state’s hand.”
Still, “these are all kind of minor solutions,” said Ronald A. Kaiser, a professor of water policy at Texas A&M University. “These cities are going to continue to grow. Drought is going to continue to happen.” The Texas Supreme Court will need to provide more guidance on the issue, he said, if lawmakers won’t take up the challenge.
San Antonio and others have also argued that Texas groundwater should be governed according to “correlative rights,” the way that the Legislature has directed for resources like oil and gas. That means rather than pumping as much of the resource as possible, users would only take their “fair share,” determined in part by the amount of land owned by the pumper.
But so many users are already pumping more than their "fair share" that changing the regulations now would alter the economic landscape of the state, and likely prompt more lawsuits.
“Texas has had the luxury in the past of living in the world of ‘and,’” said Mark McPherson, a water rights and environmental lawyer who represents oil and gas interests. “We want to use water for irrigation. And we want to use it for livestock. And we want to use it for population. And we want to use it for oil and gas.”
“We’re at the point where we’re not going to be able to do that,” he said. “We’re going to have to live in the land of ‘or.’"
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This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/09/16/texas-fight-over-water-spills-underground/.