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Texas Sierra Club Lone Star Chapter State Capitol E-Report
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February 3, 2011:

  • National Wildlife Federation, Sierra Club Release Groundwater Statement

    The National Wildlife Federation (NWF) and the Lone Star Chapter of the Sierra Club have released a position statement on “Ground Water Legislation in the 82nd Texas Legislature.” The position statement was prompted by the introduction in the Texas Senate of SB 332 by Sen. Troy Fraser, which would establish a “vested ownership right in groundwater.” (An excellent overview of SB 332 is provided on the Hill Country Alliance website at: http://www.hillcountryalliance.org/HCA/SB332.) Similar legislation is expected to be introduced in the Texas House. Apparently one of the reasons for the introduction of this legislation is to initiate discussion and dialogue on groundwater ownership, an issue currently before the Texas Supreme Court. NWF and Sierra Club “ welcome a healthy debate and discussion of the ground water rights issue, but …oppose efforts to expand the current ground water ownership doctrine” because the “proposed expansion would cause great regulatory uncertainty and expensive litigation.”

    Ownership of groundwater and the right to use that water has been hotly debated for well over a century, dating back at least the famous East case decided by the Texas Supreme Court in 1904, which established the basic “right of capture” concept of groundwater ownership. The right of capture has been modified over the years by the creation of groundwater management districts in most (but not all) of Texas, authorized by a 1917 amendment to the Texas Constitution. Some of those districts, such as the Edwards Aquifer Authority (EAA), which covers the southern portion of the Edwards, have a very specific groundwater regulatory system authorized and proscribed by the Texas Legislature. The power of the EAA to regulate groundwater withdrawal is actually the specific question before the Texas Supreme Court in the EAA v. Day and McDaniel case, which was heard by the court a year ago. The Supreme Court has not issued a decision in the case.

    A number of agricultural producer groups and landowner groups – including the Texas Farm Bureau, Texas & Southwestern Cattle Raisers, and Texas Wildlife Association – have joined together to promote the concept of a “vested ownership right in groundwater,” which asserts that the landowner of the surface property has not only the right to capture water from under their property but indeed a right to that water “in place.” If such a vested right in place is recognized by the Legislature and/or the Supreme Court any effort by a groundwater district to manage or regulate groundwater might be challenged as a “taking” of a groundwater property right that might require compensation to the property owner. The assertion of such a vested right, therefore, might undermine all efforts to manage groundwater responsibly and sustainably in the state.

    Not all agricultural or landowner groups support the vested ownership right concept or SB 332, and some regional water planning groups, groundwater districts, and cities also are raising concerns about the Legislature establishing such a principle. For example, resolutions opposing SB 332 have been adopted by the Region K Water Planning Group, the Coastal Bend Groundwater Conservation District, and the Texas Rice Producers Legislative Group. Copies of these resolutions may be found on the Hill Country Alliance webpage on SB 332.

    The issue of groundwater ownership is likely to be front and center among water issues debated during the 82 nd Texas Legislature, whether or not any action is finally taken.

  • The State Capitol E-Report is a monthly electronic update from the Lone Star Chapter of the Sierra Club reporting on Texas environmental policy issues of statewide interest. Contact us at: lonestar.chapter@sierraclub.org ...Header photo "Waters Edge" copyright Susan Heller donate
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