Below the Surface

The Legislature was looking in the wrong place when it tried to solve the state’s water crisis.

decades to come.” He did not add, “As long as you all think that’s a good idea,” though he may as well have. Lawmakers made the funding contingent on voter approval to mollify a small but vocal faction within the Republican party that opposes new spending of any stripe. Coming as it did in the midst of one of the worst droughts in state history, the measure’s overwhelming approval in November—more than 73 percent of voters said yes—was perhaps not surprising.

And its success is something to celebrate: after years of inaction, Texas will at last have some money to invest in long-overdue water infrastructure improvements like new pipelines, expanded water-treatment plants, and perhaps even a new reservoir or two. Two billion dollars may not sound like much—the 2012 state water plan lists $53 billion worth of projects—but the loans are meant to act as seed money to leverage more funding, and the money can be lent out again and again as the original recipients begin repaying their debts. 

Yet amid all the backslapping and self-congratulating, a cloud hung over Perry’s signing ceremony. Dedicating revenue to new infrastructure is a welcome development, but when it comes to water, the most vexing and contentious issue has nothing to do with money. If Perry really wants to “secure the future,” as well as his own legacy, he will challenge the Legislature to take up what has long been the Gordian knot of state water politics: the question of who should control the state’s vast reserves of groundwater. Groundwater in Texas has long been considered private property, unlike surface water, which is a public resource. The use of groundwater is governed by the old English common law doctrine known as the rule of capture. Put simply, any water you find under your own land—as much as you can “capture”—is yours to use as you see fit. In practice, this means that whoever puts the biggest straw in the ground gets the most water, even if it means that wells on adjacent properties run dry. A series of reform efforts by past Legislatures, coupled with some confounding decisions by the Supreme Court of Texas, have left us with a legal morass in which no one is really sure who has the right to pump—or how much. One thing we do know is that groundwater, much of it piped from rural areas to cities, will become a bigger part of the water-supply equation as our population grows. Even now private companies known as water marketers, who buy up water rights from rural landowners and sell them to nearby cities, are lining up to help their customers get well fields and pipelines approved for loans from the state water fund, while farmers, ranchers, and residents of small communities who have historically relied on that groundwater wring their hands. 

At the bottom of this conundrum is a legal fiction: the notion that groundwater and surface water are somehow different. Groundwater resides in aquifers, which are essentially enormous underground reservoirs fed by rainwater filtering down through the earth. If aquifers are full enough, groundwater will come to the surface as springs, which in turn feed creeks and rivers. Here in Texas especially, many streams have holes in their beds, known as recharge features, which funnel surface water right back into the aquifer. If aquifers are mined—that is, pumped beyond their capacity to recharge themselves—springs will stop flowing and streams will dry up. The absurdity of having two completely different regulatory regimes for what is essentially the same water is an anachronism that Texas can no longer afford.

Here again it is time for Perry and the Legislature to lead. But will they? The handling of the water legislation last session does not bode well, particularly the decision to punt the issue to voters. What should we think about a Legislature too timid to simply appropriate the money for such an immensely popular undertaking on its own accord? “A ship is safe in harbor,” as the saying goes, “but that’s not what ships are for.” Ships are for sailing, and legislatures are for making decisions—even in stormy weather.

The rule of capture has been the law of the land for more than one hundred years, and it worked well enough when Texas was a rural state with plenty of surface water to go around. But rural interests realized they needed protection when population growth forced cities to begin coveting groundwater in nearby counties. Rather than declare groundwater a public good—anathema in a state that celebrates property rights—the Legislature began encouraging the creation of groundwater conservation districts composed of locally elected boards. These districts, which proliferated in the eighties and nineties, were empowered to limit pumping to prevent aquifers from being drained, finally putting a curb on the rule of capture, at least in theory. Landowners who in the past pumped huge volumes from their wells were generally allowed to continue doing so, even if it caused their neighbors’ wells to dry up. In fact, most districts are reluctant to deny any permit request from locals; they see their mission as chiefly to prevent massive water grabs by nearby cities.

The problem is that districts are finding it increasingly hard to say no to anyone. In 2012 the state Supreme Court ruled in Edwards Aquifer Authority v. Burrell Day and Joel McDaniel that a landowner has the right to his groundwater, regardless of how many permits a conservation district has already issued, and he may be entitled to compensation if that right is limited or taken away. The decision essentially invited landowners—and water marketers who buy up their water rights—to begin suing conservation districts that deny them permits. “It’s kind of a funny legal situation,” said veteran water attorney Martin Rochelle, of Lloyd Gosselink Rochelle and Townsend, in Austin. “You might have a claim against a groundwater district that says you can only pump so much water, but your neighbor can come take it from you without paying you anything.”

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