Drought, Legal Issues, and Aquifer Management

By Margaret Cook
October 24, 2014

For the past three years, most of Texas has been in the throes of a major drought. At the same time, the state’s economy has been booming and population rapidly increasing. The San Antonio area has been home to much of this economic and population growth as well as to the effects drought.

As the city and surrounding area’s main source of water, the Edwards Aquifer is a constant point of concern. The artesian aquifer has a relatively fast recharge rate but also a rapid discharge due to its geologic formation and high demands from water users—the aquifer is the sole drinking water source for over 1.7 million people in Central and South Texas. Demands were so high the low flows out of the aquifer into downstream springs threatened endangered species in the area. In 1993, under the threat of federal intervention, the Texas Legislature created the Edwards Aquifer Authority to protect the water resources in the Edwards Aquifer, maintain local control of that water, and still allow users in the area access to the water. The Edwards Aquifer Authority Act requires EAA to, among other things, issue permits on wells and limit withdrawals to 570,000 acre-feet—a difficult task considering, under Rule of Capture, Texas groundwater is property of the landowners.

The Authority has since come under scrutiny for its legislatively-mandated management plans. The recent case, EAA v. Day and McDaniel, involved a claim to aquifer water beyond that permitted by the EAA. The Supreme Court issued a unanimous decision that, in Texas, a landowner has a constitutionally protected interest in groundwater in place. The decision does not question the authority of the Texas Legislature to legislate the conservation of groundwater in the state or the authority of the EAA to protect aquifer waters. While the court did not assert that a takings occurred in this case, the court opened the door for a takings claim against EAA—meaning EAA could have to pay landowners for not allowing them access to water even though the legislature has required EAA to limit access to water.

So here we have a conflict. The EAA must limit water use but landowners own the water. According to testimony at the Joint Legislative Committee on Oversight of Edwards Aquifer on September 15, 2014, the EAA recently rejected five new water permits and was immediately served in a new takings case. Representative Doug Miller (R-New Braunfels) asked the EAA representatives why they can’t raise the cap on the aquifer to allow these new permits. The answer: There’s not enough water. The aquifer, under pressure from the current drought, is currently at stage 4 withdrawal restrictions, meaning users in San Antonio can only withdraw 40% of their permitted water, and, according to the EAA, there is a 10% chance of entering stage 5 withdrawal restrictions by October. Low flows out of nearby springs fed by the Edwards Aquifer could trigger federal intervention to protect endangered species.

While EAA’s situation is special, drought and legal battles affect other groundwater districts across the state making it difficult for these entities established by the legislature to protect water resources to do so.

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Margaret Cook is pursuing dual Masters degrees in Public Affairs and Environmental & Water Resources Engineering at the University of Texas at Austin. Part of her research on the energy-water nexus in Texas includes efficient reallocation of water through water markets.