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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