Compromise language in a closely-watched Senate bill could settle decades of argument over the ownership of groundwater in Texas.
Simple but nuanced wording made available late last week recognized a landowner’s interest in water beneath the ground, and only ownership once they have brought it to the surface.
More than 50 years of legal debate has centered around the distinction; at what point did a Texan truly own water beneath the soil? Negotiated language appeared to give landowners and outside groups more strength to challenge regulations on groundwater pumping while establishing owners had an interest — not a right — to water pooled beneath the soil.
The language recognizes rights to groundwater only implied in current law, said Sen. Robert Duncan, the Lubbock Republican who worked on the substitute bill with author and Natural Resources Committee Chairman Sen. Troy Fraser, R-Horseshoe Bay.
“It ensures that the important legal concepts, such as the rule of capture and the groundwater district’s ability to manage the competing interests and also provide for conservation, are undisturbed,” Duncan said.
Fraser's office did not return calls for comment late last week. A draft of his substitute bill provided to The Avalanche-Journal recognizes both an owner’s “vested ownership interest” in groundwater beneath their property and a “compelling public interest vital to public safety, welfare and economic progress” in the preservation and conservation of groundwater by regulatory districts.
Senators sought to soothe fears of both property owners and locally-elected regulators as state-required conservation limits move off planning papers and into well fields critical for agribusiness, cities and the oil and gas industry.
The state owns water in lakes and rivers in Texas, but not groundwater. Longstanding law has held that landowners own whatever they pump to the surface from beneath their land.
More than half the farm acreage in the Lubbock region mines the Ogallala Aquifer to feed a multi-billion dollar agriculture economy.
Locally elected groundwater districts emerged over time to balance demands on the aquifer between neighbors. Such districts have begun work to meet state-required conservation goals for water held in aquifers. For some districts, such as the regional regulator based in Lubbock, that includes limits on the amount of water someone may pump to the surface.
Grower organizations have cried foul over how some districts have set their pumping allocations. Landowners own that water as it sits beneath the ground, not simply when they pump it, they argued. Some sought recognition of a landowner's ownership of the water in place to protect the lifeblood of irrigated farms, dairies and certain ranch operations.
It was not as much of a fight over the Ogallala, said Billy Howe, legislative director for the Texas Farm Bureau. But regulations in central and southeast Texas worried landowners, he said.
"If all these other districts had the same attitude as the Panhandle, we wouldn’t have a problem," Howe said. "But unfortunately, that’s not the case statewide."
Districts feared such language would force the regulators to pay for water they prohibited landowners from pumping. Testimony during a public hearing on the original bill also seemed to open the door to difficult, similar claims between neighbors draining water from beneath each other's land.
Bill language now recognizes both. Landowners have a vested but unquantified interest; districts have regulatory powers that must follow their state plans.
The language surprised Gabriel Eckstein, a senior fellow at Texas Tech’s Center for Water Policy and a professor focused on water law at Texas Wesleyan University.
“Personally, I think this is a fantastic provision that we should have, not only in groundwater law, but in surface water law,” Eckstein said.
Now outside groups, along with individual landowners, could challenge a district’s regulations in court and force regulators to demonstrate their rules benefited the public, he said.
In exchange, the law sets aside district fears of claims of property rights damages, Eckstein said.
“This could eliminate the takings problem, because you don’t have the right to the water” under the ground, Eckstein said. “We’re talking billions, if not trillions of dollars, if the state of Texas came out with some law taking a private property right.”
Both groundwater representatives and farm groups supported the language available late last week.
The bill recognized rights without removing local control over how to manage the resource, said Jim Conkright, president of the Texas Association of Groundwater Districts and manager of the High Plains Underground Water Conservation District No. 1.
Jason Skaggs, executive director of the Texas and Southwest Cattle Raisers Association, praised Duncan's work on the issue. He and Howe said their groups supported the language distributed last week.
"We’ve said all along that we support local groundwater conservation districts and we support their ability to manage the groundwater as long as that management and regulation is reasonable," Skaggs said. "We think this legislation strikes an appropriate balance between that management and regulation of the groundwater."
The Natural Resources committee was set to meet Tuesday at 9 a.m.
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Comments (11)
Add commentMaybe it would be good to
Maybe it would be good to have restrictions. It might keep farmers from watering wheat from october til april, and keep farmers from filling up bar ditches with precious ground waterwater. But if farmers have restrictions I think cities that pump ground water should have the same restrictions also.
Duncan
If Duncan is going to be involved in anything, we all will be screwed! If you will remember, Duncan and Hance were deaply involved in establishing the Andrews Toxic waste site over the aquifer we drink water from... @ m-07041 Farmers at least try to use it on crops whereas city dwellers just let it run steaddly down the curb to the drain. Which I guess is OK since the city thinks it has plenty of water. When Lubock starts pumping out of the Justiceburg lake, it will be in the same condition as the little mud hole north of Amarillo. Amazing how people think there is no end to our pressious water supplys! Wait until one of the third world countrys decides to put poison in our lake water, and our elected officials (lawyers) have poisoned our aquifer!
Again; FOLLOW THE MONEY
Tax WATER
Reagan once said "if it moves, TAX IT. if it keeps moving, REGULATE IT. if it stops moving, SUBSIDIZE IT.
Ronald Reagan was mocking Government's approach to anything they feel will give them power and revenue. Duncan seeks power and anyone who try's to tell you that it is about conservation needs to look at the Pacific Ocean and the Atlantic Ocean. Also, look at the Mississippi River, Colorado River, and the Rio Grande.
Conservation is a scary word and when the Government say's they are here to help, you are pretty foolish if you are willing and able.
Say no to drugs and tell the good senator that if you bought the land, then anything that comes with it is yours. Water, Oil, Gold, Coal, or Timber are natural resources. The government regulates whenever they are given heavy donations in order to intervene.
Duncan is doing the bidding of a special interest group. FYI, you property owners are not it. Slippery slope folks.
m-0741
Do you think farmers water that wheat from October to April for the hell of it?
1000 farmers
Suppose there are 1000 farmers in the state of Texas and there 181 congressmen and senators.
The government will get non-farmers which are about 25 million, and tell them that the farmers are cheating them by stealing the water and destroying the environment. The farmers are going to be evil because they will use up all the water and dry up areas like Lubbock, Midland and Abilene.
So, if they can convince the masses who know nothing about farming (watering Oct-April) then the government will create a new tax and more jobs for state workers.
Yes, someone will put a meter on every Pivot Sprinkler out there, and money will be collected depending on usage. Good deal right? Yep, and the farmer will charge more for their products because like gas, the government has a tax on it.
Tell Duncan you are not buying his story. Leave water ownership alone. If you own the land, you own the water.
This is a TAX folks. And if you think only farmers will pay it, you are fooling yourself. HIDDEN TAXes are always passed to consumers.
Taxes
Just like the oil price trickle down we are in now. To the farm , fertelizer, fuel (which everybody needs), food and fiber for cloths. Everything is going up.
What
What about a law that says we should save 50% of the oil underground? Save it for what? Despite the take on this matter, there is no decade-long debate. The Texas Supreme Court recognises ground water as being owned absolutely by the surface estate owner. In lawyer speak, it is a vested right no different than the concrete in your driveway or the trees in your yard. The current "debate" is whether the legislature can get away with turning a decidedly anti-communist private property interest in water into a communal interest and avoid the centuries old, and uniquely American, prohibition against governmental taking of private propperty without just compensation. How important is this question? Well, consider how privately owned and privately developed natural resources such as coal, oil, iron ore, animals and water have turned America into the top nation in the world. Do we really want to change that to save one creek here, a bug there, a coral over there and a bait fish in a drying up California lake bottom? Now consider to what happens to wealth creation when the King or the legislature imposes arbitrary limits such as a 50% water saved in 50 years rule. I don't want America to become a second tier country. Do you not see how other countries' militaries bully the weaker ones? Do we want to be the victims? Our enemies do. They don't want equality, they want to trade places with us, their perceived oppressor.
The Ogallala is recharged by rainfall. Predicting the weather out 50 years smacks of the foolhardy limits of Man-Made Global Warming placed on the other American wealth creation industries that make America a first tier country.
No country can become or remain a world power without the present capability to manufacture heavy machinery. We need leaders who understand such historically proven fundamentals in this hostile world.
Don't be confused
by the Rule of Capture. It does not apply except between two ground water owners whose lands are next to each other and share a common boundary. Otherwise, the Rule of Capture is totally irrelevant.
Rainfall
The aquifur is DESIGNED to replenish with rainfall, but it is going to have to start raining again like it did in the 50's to do this. Overuseage and too much dry weather the last 70 years is the reason our water levels have dropped as much as 80% in most areas. There are a few areas that do not have any underground water at all. It is NOT recharging it's self. This is a big problem..
Right to untainted water is not a priority to Duncan...
and all efforts are a waste of time if the water from the Ogallala becomes unfit for human consumption due to contamination from the Senator's favorite nuclear waste dump in Andrews. What hypocrisy to work towards maintaining the right of capture and blah blah blah when everything he has done to date demonstrates his disregard for the people of Texas and others who rely on the aquifer for sustenance.
7mulas
You are sooo correct!! He does not care anything about the people in Texas. He, Hance and Bush were the BIG 3 in getting the Andrews waste site going. (+ a hotshot in Dallas) None of them care about water or anything else that is for the good of Texans. The only thing they ALL care about is special intrest groups money in their pockets. And don't get me started on Hance and TT.........(sp)sorry