June 2024

Sun Mon Tue Wed Thu Fri Sat
2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
My Photo
Blog powered by Typepad
Member since 12/2006

Favorite Blogs

  • Authentically Wired
    Water and a lot more from Paul F. Miller.
  • AWRA
    The water resources blog of the American Water Resources Association.
  • Blue Marble Earth
    An articulate Earth scientist with an MS in Geography from Oregon State University, Courtney van Stolk explores the 'whys' of this fantastic planet.
  • California Water Blog
    A biologist, economist, engineer and geologist walk onto a bar…From the Center for Watershed Sciences at UC-Davis.
  • Campanastan
    That's 'Campana-stan', or 'Place of Campana', formerly 'Aquablog'. Michael Campana's personal blog, promulgating his Weltanschauung.
  • Chance of Rain
    Journalist Emily Green's take on water and related issues.
  • Dr. Anne Jefferson's Watershed Hydrology Lab
    Anne blogs from Kent State University on a variety of earth science topics.
  • Great Lakes Law
    Noah Hall's blog about - what else - all things wet and legal in the Great Lakes region!
  • International Water Law Project
    Gabriel Eckstein, Professor of Law at Texas A&M University School of Law, comments on international and transboundary water law and policy.
  • John Fleck
    Former science writer @ Albuquerque Journal and current director of the Water Resources Program at U of NM. Topics: Colorado River basin, Western USA water, more!
  • Legal Planet: Environmental Law and Policy
    From the UC-Berkeley and UCLA law schools, it highlights the latest legal and policy initiatives and examines their implications.
  • Maven's Notebook
    A water, science, and environmental policy blog by Chris Austin, aka 'Maven'. Focus is on California.
  • On The Public Record
    A 'low level civil servant who reads a lot of government reports writes about California water and related topics.
  • Wettit - the water reddit
    Water blog with tons of news items, other blogs, etc.
  • Texas Agriculture Law Blog
    Don't let the name fool you - there are lots of water issues in agriculture and Tiffany Dowell of Texas A&M University does a fabulous job with this important Internet resource. Give it a read - I do every day!
  • The Water Blog
    From the Portland, OR, Water Bureau.
  • The Way of Water
    Dr. Jennifer Veilleux records her fieldwork, research, and thoughts about water resources development and management, indigenous rights, ethics, and a host of other issues.
  • Thirsty in Suburbia
    Gayle Leonard documents things from the world of water that make us smile: particularly funny, amusing and weird items on bottled water, water towers, water marketing, recycling, the art-water nexus and working.
  • This Day in Water History
    Michael J. 'Mike' McGuire, engineer extraordinaire, NAE member, and author of 'The Chlorine Revolution', blogs about historical happenings in the fields of drinking water and wastewater keyed to calendar dates.
  • WaSH Resources
    New publications, web sites and multi-media on water, sanitation and hygiene (WaSH).
  • Waste, Water, Whatever
    Elizabeth Royte's ('Bottlemania', 'Garbage Land') notes on waste, water, whatever.
  • Water Matters
    News from the Columbia University Water Center.
  • Watershed Moments: Thoughts from the Hydrosphere
    From Sarah Boon - rediscovering her writing and editing roots after 13 years, primarily as an environmental scientist. Her writing centres around creative non-fiction, specifically memoir and nature writing. The landscapes of western Canada are her main inspiration.
  • WaterWired
    All things freshwater: news, comment, publications and analysis from hydrogeologist Michael E. Campana, Professor at Oregon State University and Technical Director of the AWRA.

« Been There, Done That: The Philomath Fluoride Fight | Main | Open Journal of Modern Hydrology 2(1) - January 2012 »

Monday, 27 February 2012


Feed You can follow this conversation by subscribing to the comment feed for this post.

Doran G. Williams

I should have included another possibility:

That cites and water-hustlers will mount a strong effort to get the Texas Constitution amended in a way that will render Day less onerous. It is not difficult to talk Texas voters into amending our Constitution. In this case, the effort will pit urban voters -- with their grassy lawns of water-wasting plants and trees, and local water-wasting industries, such as car washes, and various non-essential manufacturing businesses -- against much fewer rural voters. I suspect it might take less than 6 years to get the Constitution amended.

Doran G. Williams

Three matters leap to mind upon reading Day.

One: How will the Supreme Court of Texas deal with future conflicts between adjoining land owners regarding extraction of water from a common pool or aquifer? The Court's approach till now has been couched in terms of a "right of capture." You can pump as much water from beneath Tract A as you wish, even though doing so draws down the water from beneath adjacent Tract B, causing the water beneath Tract B to migrate to Tract A and the pump located in the water beneath Tract A. In the past there has been no legal remedy for the owner of Tract B. He simply lost the water flowing to the pump beneath Tract A. But now, if that water is actually owned by the owner of Tract B, then the owner of Tract A is very likely to be required to pay for the quantity of water being removed from Tract B.

Second: We in Texas will start to see a more vigorous use by municipalites of the condemnation of underground water rights. The owners of the underground water coveted by a City will of course try to get a maximun price for the water. This is, of course, known as the market place at work. But cities in Texas, and the politicians those cities produce, really don't care about market place ideology when it comes to water. Cities will resort to condemnation, and rely upon a hand-picked panel, rather than the market, to determine what is a "reasonable" price. Betcha didn't know that so many Texas politicians and business people are really closet socialists.

Third: Somewhat contrary to the immediately foregoing "Second," Day may have some effect upon what the Texas Supreme Court will allow to happen under the rubric of the "public purpose" for which condemnation/right of imminent domain is supposedly exercised. After all, "the public" is usually just someone farther down the road, or down stream. So many of the public purposes for which property is condemned in Texas are really for a very limited constituency, and not for the public at large. In addition, it is common practice for the Legislature to cede to private businesses and semi-public agencies, the right to condemn land for pipelines. In Texas, getting the ownership of ground-water, or the right to exploit and pump it, is one thing. Getting it to market is another. In fact, if it were not for the grant of eminent domain to private businesses, many of the State's oil, gas, and water pipelines would probably not exist. Now, we should expect those pipes to be located in the existing rights of ways of the State's roads and highways. The Court should be expected to take a longer, harder look at these practices post-Day. There is no way to predict what the Court will do.

Chris Brooks

Thank you Prof. Jarvis. I think a unitization-type allocation regime provides an excellent opportunity to give the environment a seat at the table in developing allocation strategies. I may be misinterpreting what Prof. Eckstein was saying but I thought he might be advocating for environmental set-asides in aquifer management. If so I think there would be potential takings issues involved. He also highlights an important difference between petroleum resources and aquifer resources - which is that water left in the ground has unique values that oil left in the ground lacks. Those unique values can result in opportunities for market solutions to aquifer management problems created under the rule of capture, in my opinion.

Rainbow Water Coalition

But unitization is already applied to groundwater resources - the geothermally heated groundwater resources which are part of the commons. Utah and Oregon unitize geothermal resources. Utah attempted unitization of groundwater in the west desert. And Wyoming unitizes aquifers that are targets for storage of carbon.

Careful examination of unitization employed by the oil and gas industry reveals a goal that is collectively beneficial, and that indirectly included the "environment" given that one of the goals of slowing the "race to the pumps" was to preserve the physical integrity of the reservoir (also referred to as aquifer storage).

Why not make the "environment and ecological values" one of the "operators" in an unitization scheme? Japan considers groundwater private property, yet uses unitization concepts to protect the sustainability of sacred springs.

Gabriel Eckstein

Yes, unitization for oil & gas has resulted in greater efficiencies. However, I would be very hesitant to apply the same scheme to ground water resources. As you note, unitization in the context of oil and gas has been implemented to prevent waste among the pumpers - in other words, it’s a mechanism to maximize pumping, management, and economic efficiency. I'm not sure that you have the same objectives for ground water. Proper management and efficient use of ground water focuses on conservation and sustainability. The Edwards is a good example of this where there is great environmental and ecological value in leaving the water in the aquifer. If the aquifer was unitized for purposes of production (along the lines of an oil/gas reservoir), where would environmental and ecological values come in? Moreover, how would sustainability be incorporated into the scheme?

Chris Brooks

Those are some excellent points made by Prof. Eckstein. I would like to add that there is another significant difference between oil/gas and water -- Texas instituted unitization of oil fields many years ago to prevent waste of the resource. By doing so they quantified the rights of the owners of those fields, allowing more efficient use of the resource and creating greater value to the owners. By leaving groundwater to the fate of the rule of capture they are ensuring similar waste and inefficiency as was occurring in the oil fields. Quantification of GW rights (as the EAA has done to my understanding) through a management regime that has an effect similar to unitization can lead to similar enhancements - a quick check of the value of water rights within EAA can show that pretty effectively.

Gabriel Eckstein

Hi, Michael.

Jesse's analysis is right on point. I would add, however, three additional thoughts. First, the analogy to oil and gas that the Texas Supreme Court used to justify its decision is very troubling. On page 25, the Court stated:

"To differentiate between groundwater and oil and gas in terms of importance to modern life would be difficult. Drinking water is essential for life, but fuel for heat and power, at least in this society, is also indispensable. Again, the issue is not whether there are important differences between groundwater and hydrocarbons; there certainly are. But we see no basis in these differences to conclude that the common law allows ownership of oil and gas in place but not groundwater."

What the Court is saying is that the differences between hydrocarbon resources and water are immaterial for the purpose of determining property rights.

While I agree that fuel is an important commodity in our modern life, I have great difficulty equating that import to water. Although there are multitude of alternatives for the former, there are none for water. Equating substitutable natural resources with the most fundamental and irreplaceable element of life, in my mind, is a flawed analysis and fundamentally bad policy. And using that analysis as a basis for applying equivalent property rights as between the two is a travesty of justice.

As a result, ground water in Texas is now private property - owned by the overlaying land owner. This raises the second point - the further bifurcation of the law of surface water from that of ground water in Texas. Surface water in Texas is owned by the state on behalf of its citizens; its use is subject to a permit system that is regulated by the state. By further enshrining private property rights to ground water resources, the Texas Supreme Court is further complicating water law in the state. Molecules of water are regulated under different regimes depending on where they are found - in a stream versus in an aquifer. This disparate treatment means that springs feeding rivers and lakes could be legally drained by the overlaying landowner, irrespective of the impact on downstream users and the environment. The Court's latest decision effectively makes this scenario even more realistic as landowners can now brandish the "takings" weapon against governmental restrictions on such actions.

Lastly, the result of this decision is certain to make water management in the state far more difficult and complex. Texas just endured its worst one-year drought this past year and worse are projected on the horizon; the state's population is expected to double in the next 40 years, while available water resources are actually expected to decline. How the state will be able to plan adequately for this parched future is now further jeopardized by the limitations that this decision places on state action related to ground water management.

I suspect that this decision will likely go down as one of the Texas Supreme Court's most significant decisions of recent years. And 40 years from now, it will be cursed by Texans who will have been cursed by this decision.

Best regards,


Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.


Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name and email address are required. Email address will not be displayed with the comment.)



  • Visitors
Geology Site that Rocks!
Featured in Alltop
proudly awards
this site as
Recommended Reading
Please vote for it
in the community!

Vote for us!

Enter your email address:

Delivered by FeedBurner

Find the best blogs at

WWW sites