| Water will become our most valuable asset—probably the most precious commodity we’ll have available in the next 50 years.” I heard that statement from a farmer the other night as I sat in on the Texas Farm Bureau District 8 Policy Development meeting. The discussion centered on the topic of Texas water rights with regard to underground water.
That comment is so true. The Texas population is expected to surge to 35 million in the next 30 years. Water will determine where that growth will occur, or if it will occur.
You may think the water beneath your land is yours. Technically, Texas law says it is. However, groundwater districts control it. Municipalities covet it. Entrepreneurs want to sell it. And the Texas legislature and the courts will eventually decide its fate.
With all those mouths trying to drink out of the same pitcher, do you know what your rights are? Neither does anyone else, for sure. Interpretations of private property rights attached to underground water in Texas are as muddy as the Brazos River at flood stage.
The Legislature is likely to clear that stream this legislative session, making significant changes to how groundwater is managed in Texas. Cases are also being heard before the Texas Supreme Court that could define the rights of Texas property owners in regards to groundwater.
Current Texas law recognizes the landowners’ rights to water beneath their property. It also gives groundwater districts the authority to regulate it. There are two schools of thought concerning groundwater as a property right in Texas.
The first is the position generally favored by groundwater conservation districts (GCD)—that groundwater is not property until the owner physically captures it. Many GCDs like this approach because it allows them to protect historic or existing use by denying new groundwater users the right to the water. This position allows GCDs the legal right to deny a property owner the right to drill a well or pump groundwater without that property owner claiming that their groundwater has been “taken” from them. “Takings” claims could include the right of the property owner to be compensated for the loss of rights to the groundwater.
Many landowners favor the second approach because it gives them an ownership in groundwater that is protected from a “taking” by a groundwater conservation district. In fact, Texas Farm Bureau’s policy currently supports this opinion: “We believe the right to capture groundwater in place is a vested property right.” The reasoning is this: Groundwater is part of the surface estate of the property. The owner of the surface estate has a right to the groundwater, just like he has the right to sand, gravel or limestone that is part of the surface estate. Under this argument, a groundwater district cannot deny the right of the property owner to obtain a permit and pump groundwater. Under this argument, a district would have to reduce the pumping of existing users to allow new users to capture groundwater.
So who’s right? Take away the regulatory authority of the GCDs and we could have a groundwater free-for-all in Texas. Take away the protection of a “taking” of groundwater from the landowner and you have potential for abuse by GCDs. And there’s a whole host of issues in-between.
There’s an old saying that you don’t miss the water until the well runs dry. Folks, the level is getting low.
There are no easy solutions when it comes to determining Texas water rights…just lots of questions. How do you feel?
Mike Barnett is Publications Director for the Texas Farm Bureau and a regular contributor for the Texas Ag Talks blog. He writes on a variety of topics including Texas water rights, animal welfare, and agriculture trade. |
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