No chance of silencing the groundwater pumps of Texas, , but perhaps they will be reined it a bit. The Rule of Capture, aka the Rule of the Biggest Pump, the groundwater law in Texas, may be on life support, according to a recent article by Greg Harman in the San Antonio Current.
For as long as most people can remember, Texas groundwater law followed the Rule of Capture, which means that a landowner can pump all the water he or she wants to pump. There is no 'reasonable use' criterion, although 'malicious intent' is frowned upon. To those of us who are non-Texans, such a law seems apropos, well-suited to the Lone Star State, if somewhat anachronistic, given the tenor of the times.
The rule's effects have been mitigated somewhat by the creation of the 91 confirmed groundwater conservation districts(GCDs) in Texas, each of which has varying degrees of authority over groundwater (well permits, spacing) and/or pumpage within its boundaries. These districts generally follow political boundaries and not those of of aquifers or groundwater basins. But I suppose they are better than nothing.
The state has also created 16 groundwater management areas (GMAs) that cover the entire state. The GMAs don't obviate the GCDs; it will be interesting to see how these two entities come together (see FAQs).
Okay, now - where does the Rule of Capture come into all this? Here goes.
Harmanbegins:
It’s called the Rule of Capture, or more directly, the Rule of the Biggest Pump. And in a state where the moisture index plummets from plumb soggy to high desert within the 830 highway miles linking Beaumont to El Paso, it’s become one enormous pain in the ass.
At least it did for the state’s smaller pumpers as Texas urbanized and industrialized over the last century and heavy production at one end of Main Street started emptying wells down the road. Rule of Capture has meant, for example, that an international water-bottling company like Nestle’s Ozarka could dry out a bevy of farmers in East Texas, as it did a decade ago, so long as they weren’t mean-spirited about it. (Texas courts can’t abide “malicious intent” when it comes to pumping neighbors dry — one of the few exceptions to our unique form of Wild West water recklessness.)
Of course, Texas, like the rest of the American West — and the rest of the world, for that matter — is fast colliding with a future of liquid uncertainty. While the state is expected to double in size by absorbing another 20 million residents by 2060, we’re going to have to get by with 22 percent less of the wet stuff, according to the Texas Water Development Board’s 2007 State Water Plan.
And yet, Texas being Texas, traditions like Rule of Capture don’t drain away so easily. For many, the right to unlimited access to the water below one’s feet is as fundamental as private property itself. “It’s been true for more than 100 years,” San Antonio attorney Tom Joseph told the nine Republican members of the Texas Supreme Court earlier this year, arguing a case that represents the court’s first chance to redefine Rule of Capture since Ozarka washed up on their docket in the ’90s. “It’s been true even when the Ten Commandments were given us because it says, ‘Thou Shalt Not Steal.’ Well, if you couldn’t own property, it wouldn’t make any difference if you could steal.”
With the above as background, Harman writes specifically about what is being called the Day case:
The Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel, aka “the Day case,” involves a couple of local oat and peanut farmers whom the Edwards Aquifer Authority refused a request to pump 1.3 million gallons per day on a parcel that had historically been used to graze cattle. It’s a muddled case that also seeks to determine whether subsurface groundwater surfacing though a natural spring, passed down a creek, and stored in a lake should still be defined as groundwater and thus the property of the landowner who controls the spring. In a way, the farmers’ argument takes Rule of Capture a step beyond historic practice: that the water beneath the land can be “owned in place” without going through the trouble of capturing it with a pump. Joseph calls it “absolute ownership.” Prime parsing for water wonks. The reason the case has the attention of growers, lawyers, academics, and politicians across the state is that the Day case challenges the Authority’s very right to regulate the Edwards Aquifer (see map; my favorite aquifer!) at all, making it the first opportunity since Ozarka for the Court to finally rule one way or the other on the historic, fundamental interpretation of Rule of Capture.
Harman is wright - WaterWonks, including yours truly, will be watching this case.
Thanks to fellow WaterWonk Gabriel Eckstein for alerting me to this.
"Opium for one, elixir for another." --Tushaar Shah, discussing the massive groundwater pumping occurring in India
Developers and liberals... God help us all. Do in-depth research and you perhaps will see why a few, and I mean just a few, have said no to giving away your water rights via a GCD... all for the sake of new and future development having access to your water, no matter how close or how far away that development is. Developers and these big cities that have a thirst for more and more water need to get that water elsewhere. That is why these big cities paid off politicians to include in these senate bills... #1, #2, & #3 various wording that specifically helps these big cities and developers. Even that billionaire north of Dallas with his multi-million dollar donations to these paid for politicians weakened wording in legislation so he could form his own water utility district without a vote of voters at large in his county. Money talks and bs walks! The legislature contends these water districts are a way to manage locally, yet knowing that TCEQ has supervisory authority over all GCDs and politicans that can be bought for a price are the ones in Austin who change the laws and send down the mandates. There are a few counties that do not want to be part of this government corruption... to take away a property owners right to capture his water so as to give it to a big city or developer in need of water for his project. Farm Bureau, TLC, TSCRA, TWA, and others appear to have sold their members out. Or perhaps their respective lobbyists have betrayed the Board Members for whom they each should represent?
Posted by: Michael L. Maurer, Sr. | Sunday, 03 October 2010 at 12:50 PM