Groundwater and Texas Law
Simply put, groundwater is water that is found beneath the surface of the earth. The rock, sand or soil formations where the groundwater is found are known as aquifers. Where aquifers come to the earth’s surface, they are either recharged with water on the surface or release water through springs. Learn more about groundwater basics at the online U.S. Geological Society Water Science School.
Groundwater Law in Texas
Texas’ guiding principle for groundwater management has been the rule of capture. Adopted in a 1904 court ruling, this rule gives the landowner the right to capture an unlimited amount of groundwater by tapping into the underlying aquifer. With only a couple of limited exceptions, the landowner is not liable for injury to another adjacent landowner caused by excessive pumping as long as the injury is not intentional. For this reason, the rule of capture is often referred to as the law of the biggest pump. Our historical approach has been to limit control of groundwater pumping. This practice appears to have been adequate when neighboring landowners were withdrawing similar, limited amounts of water or they were not pumping enough to significantly affect each other’s ability to withdraw groundwater. However, with increased demands on groundwater, the rule of capture is no longer sufficient to protect this limited water supply.
Groundwater Conservation Districts in many areas of the state have the ability to modify the rule of capture to varying degrees. These districts are essential to the protection of groundwater resources because, in their absence, there is little ability to avoid the over-exploitation of aquifers. To provide for more coordination among groundwater districts managing shared aquifers, the Texas Legislature created the Groundwater Management Area Process in 2005.
Recently, the ability of Districts to limit groundwater pumping to protect aquifer resources has been challenged. In 2012, the Texas Supreme Court ruled that the landowner has a vested right to the water under their property, but that regulation of the resource is permissible by Groundwater Conservation Districts, but excessive regulation may constitute a constitutional taking, requiring landowner compensation. An August 2013 ruling by the Fourth Court of Appeals in San Antonio found that such regulation did constitute a constitutional taking, creating much uncertainty in the future management of groundwater in Texas.