Texas groundwater law and the Edwards Aquifer

Abstract

In Texas, groundwater and surface water are managed differently. Surface water is state-owned and governed by the doctrine of prior appropriation. Groundwater law is evolving and based upon a combination of court cases and legislative actions. Like soil, groundwater is property of the surface landowner. The 1904 East case confirmed the absolute ownership of water or the “rule of capture” for beneficial use, limited only in that malicious use or willful waste and, later, subsidence of adjoining properties were not permitted. The Texas Supreme Court later indicated that rule of capture might not be appropriate doctrine, but it declined to replace it with an alternative management doctrine. In the 1990s, there were two major legal changes to the existing legal regime. First, groundwater conservation districts were designated as the preferred method for groundwater management, further emphasizing local control. Second, protection of endangered species in Edwards Aquifer springs necessitated pumping restrictions. More recently, the Day case determined that landowners had a vested property right in water below their land prior to its capture, and the Bragg case determined that, in the facts of that case, the restricting of pumping of groundwater was a taking requiring compensation. Legal constraints will be an important factor in determining the future development of the Edwards Aquifer and associated water resources.

Resolving the Water Crisis: There's a Way, But Is There the Will?

“…Another example of the statutory reluctance to enforce well metering is the State of Texas, where groundwater law has evolved, driven by the outcomes of court cases and by legislative action (Hardberger 2019). Groundwater conservation districts (GCDs)-in some respects the precursors of California's GSAs-constitute the preferred method for groundwater management in Texas.…”

“…Another difference between the GCDs and the EAA is that the latter imposes a cap on annual groundwater withdrawal within its jurisdiction. The Edwards Aquifer Balcones Fault Zone's basin yield was initially calculated to be 400,000 acre‐feet/year (Loáiciga and Schofield 2019); yet it was later increased to 572,000 acre‐feet/year (Hardberger 2019).…”

The Edwards Aquifer

“…• Managing aquifers in the context of evolving Texas water law and administrative policies (Hardberger, 2019;Payne et al, 2019): Management practices need to evolve not only as laws and policies evolve but also as our understanding of the aquifer's endangered species, conduit flow systems, and basic hydrogeology evolves. For instance, intra-and inter-aquifer connections and delineation of recharge areas continue to be topics of research.…”

“…Detailed information on many of these topics is provided by Sharp and others (2019a, b). The uniqueness and importance of this aquifer to the general public, industry and the environment have been the subject of many discussions and reports (e.g., Technical Advisory Panel, 1990;Grubb, 1997;Sharp and Banner, 1997;Sharp, 2002;Hardberger, 2019). The literature is vast and the reader is encouraged to refer to the cited sources to obtain details on particular subject areas of interest.…”

“…Anyone may use and share gw-project.org links. Direct distribution of the book is strictly prohibited.6 Legal and Administrative SystemsHardberger (2019) summarizes the development of Texas water law as it pertains to groundwater in general, and to the Edwards Aquifer in particular. In Texas, groundwater and surface water are managed by separate doctrines.…”