January 2, 2004
GCDs are answer to water woes
It appears that Texans are getting very serious about the marketing of water, and many are concerned that the old cornerstone of Texas water law, "rule of capture," will clear the way for over-pumping. Some folks have worked themselves into a bit of a frenzy over a potential problem when we already have all the tools we need to manage and regulate groundwater in Texas.
Before we overreact on the regulatory front, or dash off to the courthouse, it's time for a little clear thinking. Look at Section 36.002 of the Texas Water Code. This is what it says, in part: "Groundwater conservation districts created as provided by this chapter are the state's preferred method of groundwater manage-ment..."
Groundwater conservation districts (GCDs), under local control, have a strong record of protecting groundwater. Texas is a big state, including the forests of East Texas where 50 inches of rain falls annually, to desert-like conditions in West Texas. Rainfall totals and groundwater supplies vary greatly across our state. To expect the legislature or the courts to impose a regulatory solution that fits this variant climate and geography defies logic.
It's a fact that most groundwater pumped in Texas isn't under the rule of capture. In 1998 there were 44 groundwater conservation districts accounting for 75 percent of the groundwater pumped in Texas. Since then, 40 new GCDs have been formed. The state already has the authority to require a district to be created in an area that will have critical groundwater problems in the next 25 years.
Only three court cases in the last 100 years have challenged the rule of capture. If the rule of capture is harming Texas landowners, then why aren't the courts clogged with cases to overturn it? Groundwater conservation districts have acted as a counterbalance to irresponsible pumping. GCDs, because they are local, can protect and manage underground water, including the use of pumping limits. There is no way to shoehorn every corner of the state into a "one size fits all regulatory program." Local control of groundwater, implemented by people who will have to live with the consequences, is the right approach for this issue.
Groundwater doesn't need to be managed everywhere in Texas. Some areas have very little groundwater, and needs are met by surface supplies. Some areas are sparsely populated with little demand. GCDs allow water management to be applied where it is truly needed. All the major groundwater projects proposed in Texas are within or adjacent to the boundaries of a GCD. Areas not part of a GCD can easily join an existing district, or form a new one.
At least 100 years of Texas groundwater law is based on "rule of capture." If that principle is abandoned needlessly, lawsuits will jam the courts.
When the state assumed regulation of surface water in the 1960s, it took 20 years of litigation to resolve the issues and develop the case law for orderly appropriation of surface water. There is no need for that kind of confusion with groundwater.
Local groundwater conservation districts are the most effective way to address the issue of Texas groundwater.