Judicial and Legislative Approaches to Groundwater Management in Texas

November 16, 2017

While oil and gas have long been the prized resources in Texas, more focus is being placed on water rights than ever before. However, unlike oil and gas which has been historically regulated by the Texas Railroad Commission, Texas groundwater has been regulated by piecemeal concoctions called groundwater management areas (GMAs) and groundwater conservation districts (GCDs) intermingled with inconsistent court opinions. Unfortunately, because of this piecemeal effort, Texas has struggled to create a system that effectively protects its citizens’ interest in groundwater. While seemingly on the same team, the Texas legislature and the Texas courts have in recent years appeared to have different opinions on how to best regulate water to protect the state’s citizens. The divergence may be best explained by recent judicial treatment of water as analogous with oil and gas while the legislature continues to try to take a more regional framework approach.

 

Early on, Texas courts treated water and oil similarly. In 1904, the Texas Supreme Court ruled that water ownership was subject to the rule of capture.[1] Since water appeared much less scarce than oil and gas, its law was developed at a much slower rate. However, when droughts surfaced, water issues became much more pressing. During those times, an absolute rule of capture approach had been recognized as an unsatisfactory starting point in defining ownership. Ownership being based on what you can obtain through self-help naturally leads to waste and misappropriation of common resources. Confronting the inherent limitations of an absolute rule of capture approach, the legislature sought to limit waste by regulating water rights.[2] Like in oil and gas, this led to the question of when did water become possessed and how should it be regulated.

 

Faced with this question, the Texas Supreme Court again turned to oil and gas law and decided that water would be owned in place by the landowner.[3] Coming off this decision, the Court was next asked to decide whether the accommodation doctrine applied to groundwater like it would to oil and gas. Again, the Court came back and said that a groundwater estate that had been severed from the surface estate was to be treated like the dominant estate, the same as a mineral estate would.[4] While not nearly as developed as the law of oil and gas, water law has been interpreted by the courts in similar fashion. This analogous treatment has not been extended by the legislature.

 

The Texas legislature favored a more regional approach to managing water.[5] This regional approach is founded on a tiered system of groundwater management areas (GMAs) and groundwater conservation districts (GCDs).[6] GCDs were legislatively created in 1949.[7] They were tasked to “provide for the conservation, preservation, protection, recharging, and prevention of waste of groundwater, and of groundwater reservoirs or their subdivisions, and to control subsidence caused by withdrawal of water from those groundwater reservoirs or their subdivisions, consistent with Section 59, Article XVI, Texas Constitution.”[8] GCDs may be an effective legislative management tool but problems have arisen because these districts are not territorially-bound by the aquifer that they overlay.[9] This is the case because GCDs are not allowed to include territory from different political counties regardless of the hydrological boundaries that would be effective for management.[10] Because GCDs are defined by political lines, many GCDs may be needed to cover a single aquifer, and each GCD has the ability to apply different rules to the same aquifer.[11] This fact means that landowners over the same aquifer can be treated differently depending on what GCD they are in, if they are even in one (not all counties have formed GCDs).

 

In an effort to ameliorate the boundary problem, Texas created GMAs.[12] GMAs serve as a management body over the GCDs for each aquifer. GCDs are to report their rules to GMAs in efforts to meet the managerial goals of the GMA. GMAs coincide with aquifer boundaries “demonstrating an intent to drive management in the direction of scientific and hydrological reality rather than politics and chicanery.”[13] This has been a step forward to proper water management but it has not addressed a major problem. Different GCDs can issue different rules within the same GMA. This can lead to a landowner in one county being able to pump and sell water at will, while another landowner under rules set by his distinct GCD is left to conserve and watch his water be drained by his neighbor because of an artificial geographical distinction.[14]

 

Because of the failure to define boundaries, water rights are effectively managed far different than that of oil and gas. There are more competing firms and interested bodies. The legislature has refused to regulate water like oil and gas which has one statewide body that oversees waste and conservation. The Texas Railroad Commission also issues rules for each field statewide. This creates the benefit of regulating a landowner in a common oil and gas reservoir the same as another landowner regardless of political boundaries. This failure to create similar treatment for water owners is why an oil and gas management approach should be preferred.

 

While the state’s management of oil and gas is far more developed, there is no reason why water could not be managed in the same way. The legislature should take the approach of the courts and treat water and oil and gas as analogous and manage them in a similar fashion. The piecemeal efforts of GCDs and GMAs intermingled with court opinions advancing individual property rights has led to an unfair system. By ridding itself of artificial distinctions such as limiting GCDs to political boundaries, the legislature would be better suited to manage and conserve water for future generations.

 

 

 

 

 

[1] Houston & T.C. Ry. Co. v. East, 98 Tex. 146 (Tex. 1904).

[2] Amy Hardberger, World’s Worst Game of Telephone: Attempting to Understand the Conversation Between Texas’s Legislature and Courts on Groundwater, 43 Tex. Envtl. L.J. 257, 269 (2013).

[3] Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012).

[4] Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53 (Tex. 2016).

[5] Hardberger, supra note 2, at 259.

[6] Id. at 259–60.

[7] Marvin W. Jones and Brantley Jones, The Evolving Legacy of EAA v. Day: Toward an Effective State Water Plan, 68 Baylor L. Rev. 765, 769 (2016).

[8] Hardberger, supra note 2, at 269.

[9] Marvin W. Jones and Brantley Jones, supra note 7, at 772–73.

[10] Id. at 773.

[11] Id.

[12] Hardberger, supra note 2, at 259–260.

[13] Marvin W. Jones and Brantley Jones, supra note 7, at 774.

[14] Id. at 776–77.

About

Jack Wilson is a third year student at The University of Texas School of Law and is a graduate of Texas A&M University.