Surface water in Texas belongs to the state. It can only be used with the state’s permission. The management of groundwater is another rather complicated, even strange story, considering how critical and urgent groundwater conservation is for Texas. Action by this legislative session to move toward more effective groundwater management is ongoing.
Groundwater levels are in decline at the same time water demand is rapidly rising. Texas will be 8.8 million acre-feet (One acre foot = 324,851 gallons of water) short of water by 2060 if new water supplies are not developed. According to the current state water plan titled Water for Texas 2007, “Existing groundwater supplies—the amount of groundwater that can be produced with current permits and existing infrastructures—are projected to decrease 32 percent between 2010 and 2060, from about 8.5 million acre-feet per year to about 5.8 million acre-feet per year.” This demand is driven by estimates of future population in which Texas is expected to more than double from 2000-2060 — from 21 million people to about 46 million.
Groundwater from aquifers supplies about 60 percent of the water for Texas. Ninety-seven percent of the groundwater comes from nine major aquifers. One of the main reasons for the decline in water supply is aquifer depletion caused by pumping demands, drought and loss of natural recharge areas.
Aquifers don’t follow property lines or county boundaries. Pumping groundwater from one property can affect water availability of adjoining properties.
What is strange about this story is that the only Texas groundwater law that applies to all of the state has nothing to do with groundwater conservation. The law is called rule of capture, and it protects the landowner’s right to pump groundwater that lies under their property. Generally, as long as the groundwater is put to beneficial use and the use does not willfully or maliciously cause harm, they can drain the aquifer to a point that causes their neighbor’s well to go dry, and the neighbor has no legal recourse. Following the rule of capture, landowners can use the groundwater below their land however they want. They can even sell it and have it piped somewhere else.
It has been called the “law of the biggest pump,” and for good reason. The rule of capture consistently protects the entity with the “biggest pump.” It all started in 1901 when W. A. East, and some of his neighbors in Denison, Texas, filed a lawsuit against the Katy Railroad for pumping 25,000 gallons of water a day and causing their wells to go dry. In the 1904 decision on this case, the Texas Supreme Court adopted the rule of capture, which protected the railroad from Mr. East’s lawsuit.
Few limitations have been placed on the rule of capture. Pumping groundwater that causes land subsidence, pumping water for a wasteful purpose and drilling a slant well are all prohibited. The Texas Commission on Environmental Quality (TCEQ) is responsible for enforcing the law. So far in cases brought before the TCEQ, landowner exploitation and wasteful use have not been acknowledged.
The one state provision that allows for groundwater management is Groundwater Conservation Districts. “The only limit to rule of capture is through the districts,” says Milan J. Michalec, Cow Creek GCD director and Hill Country Alliance board member. There are 97 GCDs, local units of government authorized by the state legislature and ratified at the local level to manage and protect groundwater. The GCDs modify rule of capture by developing rules to manage groundwater through a state-approved groundwater management plan. GCD rules also may enforce production limits based on acreage or tract size. A district’s rules can regulate the production of groundwater, something that can’t be done under the rule of capture.
But only half of the state has Groundwater Conservation Districts in place. Areas of Texas not covered by GCDs are subject only to the rule of capture. “The other counties have no authority for management of groundwater,” says Michalec. “If you don’t have a Groundwater Conservation District, nobody is issuing and monitoring permits. Operating permits are critical as they typically are monitored by a meter and include a Drought Management Plan. Without a monitoring program and the power to enforce drought plans, nobody is really managing ground water withdrawals much less implementing drought strategies that can actually conserve groundwater in time of low rainfall.”
The state also has established Groundwater Management Areas (GMA) to manage groundwater regionally. There are 16 GMAs throughout the state, not all GMAs have Groundwater Conservation Districts.
Areas of Texas experiencing critical groundwater shortages, or expected to have shortages, can be designated as a Priority Groundwater Management Area (PGMA). Six PGMAs have been designated. The Texas Water Code calls for all portions of a PGMA to form Groundwater Conservation Districts, but the TCEQ has not enforced this code. The seven-county Hill Country Priority Groundwater Management Area was defined in 1990, and northwestern Comal County still has not formed a GCD.
Aquifers don’t follow political boundaries such as county lines. In an effort to foster regional cooperation among Groundwater Conservation Districts over a shared aquifer, in 2005 the Texas legislature passed House Bill 1763. The bill calls from Groundwater Management Areas to work among multiple districts to coordinate management goals and determine groundwater availability. The districts must come up with the Desired Future Condition (DFC) of the aquifer, and the Managed Available Groundwater (MAG)— the amount of water that can be pumped across a region. This condition can be determined by a certain level of the aquifer, a percentage of spring flow, or a level of groundwater quality.
“Now neighboring districts are required to divi-up the water supply,” Michalec says. “If one district can show more water availability and the neighboring district has a more conservative approach, they lose water to the district with the best ‘science project.”’ He says this is happening as the Hill Country Groundwater Management Area-9 (GMA-9) group works to come up with the area’s DFC and MAG.
The number that each GMA arrives at for Managed Available Groundwater (MAG) is important in the bigger picture for water in Texas. The state water planning strategy involves both surface and groundwater supply and demand. When the Texas Water Development Board issues the MAG, this number will become an integral component of water planning for a five year period for the 16 regions of Texas.
Assessing how much groundwater is actually available and will be available in the future involves many variables that lead to a wide range of opinions about measuring availability and allocating how much water can be pumped in a district. According to Michalec, coming to consensus on a Desired Future Condition and the Managed Available Groundwater is controversial because it can significantly change the amount of groundwater that will be available to be issued to permit holders.
Member districts within the Hill Country GMA, which involves the Trinity aquifer, have been working on a DFC for the area for two years. So far, several different scenarios have been offered for Desired Future Conditions for the Hill Country GMA. Six of these suggested future conditions have been published after modeling by the Texas Water Development Board. According to Michalec, the results have led to more questions and requests for additional information rather than helping the group come to a consensus regarding the management of the Hill Country GMA. The most contentious area of debate centers around how to model a drought of record as all models have limitations.
In a time when the state of Texas needs to take every measure to conserve water, the existing rule of capture law continues to be more of a hinderance in areas of Texas without Groundwater Conservation Districts. Groundwater Conservation Districts can be effective, but run into problems when adjacent areas are not covered by a GCD and lack conservation measures. The state fails to enforce provisions it has initiated with Priority Groundwater Management Areas.
The management of groundwater can be improved by moving toward more unified regions and a policy framework that manages in harmony with natural systems. Until the legislature can act to achieve this objective both politically and scientifically, local control exercised through the existing framework of groundwater management can work to manage, protect and conserve groundwater.
There is some legislation currently being considered that addresses groundwater management. But much more needs to be done to improve the current system. Groundwater management should be treated as an urgent issue with real solutions. If effective legislation is not passed in this session, it will be another two years before groundwater management will be addressed by the state. More about legislation affecting GCD’s can be found at www.hillcountryalliance.org/HCA/Articles041409b
Two helpful websites about groundwater management are: www.texaswatermatters.org and www.texasgroundwater.org.