Friday, April 30, 2010

Groundwater as a Private Right

I can't resist this one.  As many know, Texas has long treated groundwater as a private right with their "Rule of Capture" which basically says anyone can use the water as much as they like - even to the detriment of others. It has often been called the "Rule of the Biggest Pump".  While it has certain advantages, it also guarantees that every drop of water can be used.

With a case now in the Texas Supreme Court (Edwards Aquifer Authority v. Day) the issue of who owns the water is expected to get more court direction when the ruling is released.  Mr. Day (who has incidently passed away) argues that the Edwards Aquifer Authority can't restrict him from using groundwater from under his land, while EAA argues that they have the right to manage the groundwater and his diversion will overtax the supply. 

I ran across a set of statements made by a Texas Association which I find interesting.  This group is asking the Texas Legislature (presumably anticipating a court decision to the contrary) to clearly make groundwater a private landowner right.  The statements are:

“Private landowner ownership of groundwater encourages good stewardship and promotes accountability.”

"Private ownership provides more certainty and balance in water planning for the future.”

“As the demand for groundwater in Texas increases, it is important that groundwater continues to be recognized and reaffirmed as vested, real property of private landowners.”

“... supports reasonable regulation of groundwater so private landowners are treated fairly and afforded due process, property rights are respected, and all private landowners maintain the ability to use groundwater for any beneficial use."

Inquiring minds are likely to wonder how unrestricted access to water by all landowners can provide more certainty in water planning, better accountability, and at the same time respect all property rights.

While this case is expected to make or break local groundwater management authority in Texas, I halfway expect the court to render a ruling that continues to leave wiggle room on each side of the issue.  This is the way Texans roll!

1 comment:

  1. Interestingly the Rule of Capture is one that is shared with the oil and gas exploration business. In that business however there are regulatory schemes in place in most, if not all, states with oil and gas reserves which provide for the "unitization" of wells. In a typical unitization scheme, the geological extent of the reserve is proved and all landowners within the "unit" receive a pro-rata share of the oil and/or gas produced from the well. No other producer is permitted to drill a well within the "unit" formed by this process, thus generally avoiding the "biggest pump" problem created by the Rule of Capture.

    Though I am not familiar with Texas' particular rules in this respect, it sounds like there is nothing equivalent to the unitization process for groundwater.

    Like you, I wonder how the unrestricted application of the Rule of Capture is suppoed to provide more certainty or accountability.