Texas’ Groundwater Rights in Supreme Court (Posted By Mike Mecke)

Courtesy: Public Strategies, Inc., Texas River Systems Institute.  2/24/10

“Texas Supreme Court to Decide on Groundwater Pumping Rights Case

The ownership and control of groundwater pumping rights in Texas are now in the hands of the state Supreme Court. Last week, the nine justices heard arguments in a case that pits the right of a landowner near Von Ormy to pump from the Edwards Aquifer against the government’s authority to regulate the use of ground and surface water. For more than a decade, the Edwards Aquifer Authority has argued that in order for it to regulate pumping, landowners cannot own the water in the Edwards Aquifer. It was first time the state’s highest court considered that argument. Scores of landowners, private organizations, cities and state agencies that disagree with the EAA packed the courtroom and formed a line outside. “Any ruling by the Court that in any manner destabilizes groundwater ownership rights could have dire consequences for Texans and the Texas economy,” wrote Texas Comptroller Susan Combs. The EAA was created by state law in 1993 to ensure a future water supply for the region and protect endangered species by limiting pumping from the aquifer. Instead of allowing landowners to continue to pump as much water as they wanted as long as they put it to some beneficial use, the authority issued pumping permits and put a cap on the total amount that could be pumped. The EAA argues that if the groundwater is owned by the landowners, then it and the roughly 95 groundwater conservation districts in the state would be open to a lawsuit every time they tried to limit pumping or be forced to compensate landowners.”

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Right or Wrong?

What is your feeling on this case?  I spent about ten years working on the Edwards Aquifer region with pumpers, towns and irrigators……….. before and after the EAA was created and users were obligated to observe new pumping rights and permits.  I feel it was necessary to control over-use by any very large or uncaring users and to maintain adequate water use and irrigation pumping for all users.  And also,of course, under the earlier Federal Endangered Species lawsuit, maintaining springflow at Comal and San Marcos to preserve the habitat for those ES…….. while helping to maintain adequate river flow in the rivers below the springs on the way to healthy bays and estuaries.

Going back to my earlier post – Whose water is it?  Urban or Rural?  Should a city or a wealthy individual be able to buy or take water from a smaller, agricultural community just because it has the money or can?  Do urban lawns and golfcourses count for more than food or fiber crops, livestock or small town’s viability?  Do you want to have to buy more and more of your family’s food  from foreign markets?  Not me!   Or if you live in a city, would you rather have the financial help to your city’s economy and taxbase from a healthy surrounding agricultural region?  Yes!

Water is Life! – it is not a commodity like oil or gas

Mike Mecke

4 Comments to “Texas’ Groundwater Rights in Supreme Court”

  1. By Bill Butler, March 6, 2010 @ 12:30 am

    This is what I studied in college, pleased to see the conversation pop up on twitter. I’m glad the supreme court is forced to face the question, but ultimately the truth won’t be universal here. I will be looking for the final decision on this one.

    In my opinion water is a commodity because it takes time & energy to obtain the resource for use & time is money. This principle is at the core of our free market society & globally too. Also at our core is a sense of right & wrong, it needs to be applied to each case as it comes down the pipe. Broad sweeping legislation can cause more trouble than good when a ruling attempts to define & control relatively natural cycles. We are nature & I think people know what to do.

  2. By Craig Jones, March 12, 2010 @ 11:56 am

    Water IS a commodity. Whether one wants to consider it as such is simply a matter of personal belief. Just like food, water is a precious commodity that all people need for survival. We don’t seem to have a significant problem in accepting food as a tradable commodity in which some derive profits; why should water be different?

    There is a basic question that we all must ask ourselves: Who do we believe can/will do the best job of allocating scarce (?) resources, the government or the market?

    Capitalist believe that the market provides the best means for allocating resources. Given that one of our country’s primary problems is obesity amongst the poor, I would say that our capitalist experiment has done a fantastic job at allocating food.

    Socialist believe that governments and committees are the most efficient allocators of scarce resources. Can we think of any example to prove this theory.

    Thanks for the website
    craig jones

  3. By Dawnielle Castledine, February 24, 2011 @ 11:46 am

    The difference between water and food, in the commodity argument, is that food is something that humans are able to create more of and control where it is created. This is dependent on some very important factors (including water supply) but for the most part this stands to be true when compared to water. Water is not something that humans can create on their land. It either is there or it isn’t, whether that be in the form or surface water or groundwater. Once a groundwater supply is “exhausted”, it is usually (though not always) gone for good. Sometimes this is due to infiltration of brackish water from the lowering of water tables, others due to subsidence of land and the loss of underground storage capacity.

    Groundwater conservation districts were created by the Texas Legislature primarily to be able to prolong these areas with this groundwater resource for future use, by providing research on the supply, looking into the future of the district in terms of population growth, irrigation needs, city needs and industrial needs, as well as help to plan to meet these needs with the supply by resource management planning, permitting and supplying information on conservation strategies.

    I really don’t think it is a Capitalist or Socialist issue but is more of an issue of who is the better manager of a community resource that everyone has a right to. Texas is the only state in the arid and drought prone southwest that doesn’t have a strong regulating authority when it comes to our groundwater. This is due completely to the supply of water being a finite resource, and the desire to make it last as long as possible for all of the members of these state’s populations.

    Full disclosure: I am an Environmental Science and Policy major in Austin, TX. I don’t own land. I don’t farm or have irrigation needs. I am curious though, why are GCDs such a threat to landowners, who may or may not have irrigation needs, that they feel wronged by GCDs constitutional right (Texas Water Code) to permit and apply limits? Are the CGDs really setting that much of a cap on pumping amounts?

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