by Natalie Ballew and Jesse Libra
October 19, 2014
We all know water is important. For one, it’s essential for life. Aside from that, it’s essential for producing almost everything you depend on. Think about your day. You brush your teeth, you shower, you check your email, get gas on the way to work. All of these activities require water. The electricity you use is produced with water. Water is used in almost every industrial process you can imagine. You know that water is important, and you know Texas has a water scarcity problem. But what do you know about water management?
Texas water law is complicated. The management process and our plans for future water supplies are dictated by conflicting laws that confound dealing with water scarcity. If you want to join in on the Texas water conversation, you should know the basics of our water policy
Water planners in Texas use the worst drought on record, the drought of the 1950s, to create water management plans, but the current drought is on its way to becoming the new benchmark. The challenges of managing water in drought – already difficult because of Texas’ erratic rainfall – are compounded by shifting climatic patterns and explosive population growth. Population is expected to nearly double by 2060. Most of this growth happening in cities that already rely on heavily depleted reservoirs. As a result, more and more cities are looking for alternative water sources.
When we think of where our water comes from we usually think lakes, streams, and rivers – surface water, water that we can see. It’s easy to think about how we use surface water because we can see these impacts when river flows slow or lake levels drop. What we don’t think about is water that’s beneath our feet, stored in aquifers. We can’t see how pumping affects groundwater supply so it’s a trickier concept to grasp. Groundwater provides 60 percent of the water we use in Texas. Most of our groundwater is used by agriculture, but is quickly catching the eyes of growing urban centers.
Water is water, whether it’s on the surface or underground. What happens to surface water can influence what happens to groundwater and vice versa. In Central Texas, groundwater flows out of the Edwards-Trinity Plateau Aquifer as springs feeding rivers that travel down to the coast. In West Texas, water flowing from the Rio Grande seeps underground and recharges the Hueco-Mesilla Bolson Aquifer. The interconnectivity of surface water and groundwater is not new to experts, but this concept is quite different in the State’s eyes. Groundwater and surface water are completely separate in state law and in how water is managed by state agencies.
Surface water law in Texas evolved from a number of different systems, but today the primary doctrine used is prior appropriation. Under prior appropriation, surface water rights are completely separate from landownership. The State owns all surface water and allocates water rights for constructive purposes, also known as beneficial use. Prior appropriation essentially means ‘first in time, first in right’, meaning that the first entity given a right from the state gets the water first.
Groundwater, by contrast, is a vested property right under Texas law. Landowners own all the groundwater they can pump from their land, regardless of whether their neighbors’ well levels are affected. This concept is termed the ‘Rule of Capture’. Rule of Capture originates from a time when the Texas Supreme Court described groundwater as ‘mysterious, secret, and occult’, and has a number of implications for water use in Texas. First, Rule of Capture punishes farmers who try to conserve. If your well levels are going down because of your neighbor’s pumping, your incentive is to get as much of your water as possible before it becomes his water. Second, as mentioned above, groundwater and surface water are connected. When groundwater pumping affects surface water availability the law becomes unclear. Who is legally at fault if a landowner’s groundwater pumping causes a streambed to go dry?
We just threw a bunch of information in your face, but why should you care? Yes, you use water everyday; water is essential to life and your enjoyment of life. You know all this, but it is also important to know where your water comes from and how the state manages it. The upcoming legislative session will address some important issues that will influence your water in the future. Join the conversation.
Natalie Ballew is pursuing dual Masters degrees in Public Affairs and Energy & Earth Resources at the University of Texas at Austin. Her research focuses on communicating scientific and socio-economic groundwater issues to decision-makers and the general public.
Jesse Libra is pursuing dual Masters degrees in Global Policy Studies and Energy & Earth Resources at the University of Texas at Austin. Her research focuses on land use impacts on water availability.