Groundwater; By Definition

Margaret-Menicucci

Lawyer and Counselor

After an unusually cold Central Texas winter, we are all looking forward to the greening that occurs in March and April.  As winter’s dormancy fades, we wonder again – will we have enough water to meet our needs?  For landowners, a predictable supply of water is critical.  A good water supply to land adds value, and landowners should know how to protect this asset.

The Texas Water Development Board estimates that ground water provides about 59% of the state’s water supply – much of which is used for crop irrigation.  The major aquifers include, the extensive Ogalalla in West Texas, the rapidly flowing and recharging Edwards in central Texas, and  the Carrizo-Wilcox which runs in a long band from the upper Louisana border in the east, to the Mexican border in the south.  Rural land can spread over the surface of multiple, major & minor, aquifers with varying access to usable water.

In Texas, ground water usage has been governed by concepts such as “the rule of capture” and “ownership in place.”  The rule of capture means that, with some limitations regarding waste, a landowner can pump unlimited quantities of water from under his or her land, regardless of the impact on neighbors.  Ownership in place means, the landowner owns the groundwater below the surface of his or her land as real property.

In order to protect aquifers from depletion, the Legislature has created numerous groundwater conservation districts.  These “GCD’s” are directed to work together to manage aquifers so that they continue to provide water well into the future. GCD’s can regulate pumping through permits and well-spacing requirements.  (Note: the Edwards Aquifer Authority and the Subsidence District in Houston, have different goals and obligations than most other GCD’s resulting in broader authority to regulate pumping.)  Court rulings in the past few years have stated that, because of the concept of ownership in place, GCD regulation could result in a taking for public use that requires adequate compensation.

The past 20 years may be viewed as the most dynamic time in Texas history relating to law governing ground water.  The future is sure to bring more clarification of landowners’ rights and obligations as the state manages population growth, drought, and migration to cities. For a rural landowner, the first step is to determine whether your land is within a groundwater conservation district.  If so, then it benefits you to understand the GCD’s permitting requirements and their goals for managing the aquifer  in your region.  Understanding the ground water available in your area as well as the  demands on it, enables you to plan to ensure the benefits of your groundwater resource into the future.

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