Background

Texas courts adopted the rule of capture early in the 20th century, allowing landowners to pump as much groundwater as they can, and have declined to depart from it. The Legislature, empowered to enact groundwater regulations by the State Constitution, has delegated this responsibility to a patchwork of local districts.  

Texas courts have held that groundwater is the property of the overlying landowner, and is governed by the so-called "rule of capture.  In contrast, surface water in Texas belongs to the state.1  Those who want to use surface water need permission in the form of a "water right" granted by the Texas Commission on Environmental Quality.2  Surface water rights in Texas are controlled by two different legal doctrines, riparian rights and prior appropriation, which were combined into the Water Rights Adjudication Act in 1967.3

Groundwater accounts for about 30% of the Texas's total freshwater use.4 Approximately 75% of groundwater withdrawn is used for agriculture.5 In Texas, groundwater is also used for domestic consumption, accounting for about 100% of individual household water use and 28% of municipal supplies.6

Summary of the Law

Texas courts adopted the rule of capture in 1904,7 and the state has adhered to the rule ever since. Under the rule, property owners are entitled to withdraw as much water from beneath their land as they choose without incurring liability from neighboring property owners.8 In 1917, the people of Texas granted the Legislature expansive regulatory powers with respect to groundwater in the Conservation Amendment.9 In deference to this legislative framework, the courts have decided not to alter the property rights rules.10 However, the Legislature did not use this authority to regulate groundwater until 1949, when it passed the statute first enabling the creation of Groundwater Conservation Districts (GCDs).11

Special Permitting Area—Groundwater Conservation Districts

The passage of the 1949 statute created Groundwater Conservation Districts, and thus began the longstanding practice of the Legislature delegating its groundwater regulatory authority to local agencies.  GCDs can be created by state statute, by petition of landowners to the Texas Commission on Environmental Quality (TCEQ),12or by TCEQ's own action when it deems necessary.13  The law also gives GCDs a broad degree of discretion in terms of how they operate. Chapter 36 of the Texas Water Code sets out basic parameters for district operation and guidelines for rules, but allows for a lot of variety. For example, the district determines which activities under its jurisdiction require permits and which do not: "The district by rule shall determine each activity regulated by the district for which a permit or permit amendment is required."14 For the activities a GCD decides require a permit, the GCD is to decide whether or not a hearing is required.15 The legislature has, however, standardized the timeline for the hearings that a GCD decides to hold.16

A significant effect of the piece-by-piece approach to groundwater regulation adopted by Texas is that not every part of the state is covered by a GCD. This means that the portions of aquifers not covered by any GCD are veritable no-man's lands where any pumping goes.

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Law and Practice

Although the piecemeal regulatory approach created by the GCDs enables local residents to have a say in water resource management, the system has major gaps.. Because the default rule allows unfettered groundwater withdrawals where GCDs do not exist, there are many uncovered areas in which unregulated pumping can have the same detrimental effects on aquifers that GCD rules are intended to prevent. These unregulated areas can undercut the effectiveness of efforts by GCDs to manage aquifers sustainably. For example, the Legislature recently stepped in to prevent a company from pumping water out of an unregulated portion of the Trinity Aquifer by expanding the jurisdiction of the Barton Springs/Edwards Aquifer Groundwater Conservation District.17 The company had planned to withdraw 5 million gallons per day, leading to concerns that the wells belonging to residents of Hays County would run dry. The fact that this required specific legislation demonstrates the reactive nature of the piecemeal regulatory approach. Additionally, a recent Supreme Court decision18 means that even this particular battle is not yet over: if the GCD with new jurisdiction over the area restricts the company's planned withdrawals, the company could sue for compensation, arguing that restrictions unconstitutionally interfere with the company's property right to the water.