Regulating Unprotected Texas Groundwater: The Final Frontier
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Beneath the great state of Texas, there is water. Texas has nine major aquifers and 21 minor aquifers underlying the state. These aquifers are a vital water supply source in Texas, providing approximately 60 percent of the 16.1 million acre-feet of water used in the state annually. These underground waters also sustain surface water flow in rivers across Texas; thus, they are integral to the health of watersheds throughout the state and the economies that depend on this water. When W.H. Auden wrote, “Water is the soul of the Earth,” he must have been referring to groundwater. In Texas, groundwater is regulated on the local level by groundwater conservation districts (GCDs), whose regulatory authority over subsurface aquifers is generally confined by county boundary lines rather than hydrogeological ones. In 1917 after devastating drought, voters approved the Conservation Amendment to the Texas Constitution, which provided the authority for the Texas Legislature to establish GCDs to conserve the state’s groundwater resources. Chapter 36 of the Texas Water Code governs the powers and duties of GCDs in Texas. Texas landowners own the groundwater beneath their land as private property. While a landowner is entitled to drill for and produce groundwater below the surface of his property, the Texas Supreme Court has held that he is subject to reasonable regulation through GCDs. In GCD-managed areas, a landowner’s right to pump groundwater is tempered by the Water Code’s goals of protecting property rights in groundwater and the groundwater resource. Groundwater regulation ideally prevents one landowner from pumping to such an extent that nearby wells are impacted. Not all areas of Texas, however, are controlled by a GCD. Approximately one-third of the surface area of Texas is not regulated by a GCD. These areas where a GCD does not exist are depicted on the map below as areas without color. Out of the 254 counties in the state, 174 counties are either fully or partially within a confirmed or unconfirmed GCD. In unprotected areas, there is no regulatory authority to monitor the rate and amount of groundwater withdrawal, and the rule of capture permits landowners to pump unlimited amounts of groundwater, even if doing so dries up neighboring landowners’ wells. Unregulated areas in Texas are the final frontier — the last remaining, lawless parts of the state where groundwater protection is nonexistent. During a time of unparalleled pressure on groundwater resources across the state, the lack of groundwater protection in some areas of Texas is undermining important areas of law and policy — from property rights and natural resource protection, to groundwater management and regional water planning.