Water is “the new oil” — the fundamental resource that will allow, or limit, ongoing development in Texas and elsewhere. It is also fundamental to very important “non-development” kinds of pursuit, such as farming and ranching. The inherent tension between the water needs of rural landowners and the needs of cities is ever-present, and increasingly important.
Texas is the only state that still governs rights to groundwater according to the “Rule Of Capture” (or the “law of the biggest pump”), meaning that the owner of a parcel of land is assumed to own the “percolating” water underneath it. Historically, that groundwater ownership was absolute and the property owner could pump as much water as he or she wanted or needed, so long as it was put to a “beneficial purpose.”
In the 1950’s, Texas began authorizing local Groundwater Conservation Districts, managed by locally elected boards of directors, with the ability to place some limits on water production, well spacing, etc. Now, all or part of 171 counties (of 254) are within one of 97 GCD’s. Texans being Texans, limits on ownership rights are frequently contentious.
Clearly, there is an argument that diminishing a landowner’s water rights directly diminishes the value of the land itself, and so constitutes a “taking” by governmental authority. There are differences in the needs of a landowner who plants cotton compared to a rancher, or compared to a landowner who bottles and sells water. At the same time, Texas is growing quickly, and cities’ water needs are under stress.
These conflicting needs are getting new attention in the current Texas legislative session, and by the state’s Supreme Court:
Private property rights are strongly respected and protected in Texas, and that heritage will undoubtedly influence the outcome of this discussion. The result of the Legislature’s work on this, and a [probably later] decision by the Supreme Court, are yet to be seen, but this important conversation will most likely continue. I will keep an eye on the issue and post updates here as new developments occur.