October 20, 2021 532 PM
Groundwater districts and the path to local control
As we learned in a previous issue of “Our Water Matters,” the Texas Supreme Court established groundwater as a property right in the 1904 case Houston & Texas Central Railway v. East based on the English common law rule of capture. Also known as the “East decision,” this ruling, with some limited exceptions, essentially allows a landowner to pump as much groundwater as the landowner chooses, without liability to neighbors who claim that the pumping has depleted their wells. This led to conflicts between neighbors because the rule of capture often means “the biggest pump wins.”
In the wake of the drought of 1909, the Legislature responded by amending the state constitution to add the duty to protect the state’s natural resources, including water, to the Legislature’s obligations. The drought of 1917 further motivated the Legislature to seek a framework to regulate groundwater use. But since the East decision came before these efforts, the Supreme Court had already defined a common law regulation, resulting in “a bifurcated system that continues to create confusion regarding how far the Legislature can go in limiting the common law right [of capture],” according to Amy Hardberger, director of the Texas Tech University Center for Water Law and Policy. In other words, “Now that the courts have established groundwater as a property right, only the courts have the power to change that right.”
Despite the confusion, the Legislature made a bold move in 1949 to create groundwater conservation districts or GCDs. The purpose of a GCD is “to provide for the conservation, preservation, protection, recharging and prevention of waste of groundwater.” GCDs are the preferred method of managing and regulating groundwater in Texas because they ensure local control by those most familiar with the resource and most affected by any regulation. These GCDs can regulate in a way that ameliorates the rule of capture within their district. It took many years and a couple of droughts to reach this consensus, which was best summed up by a landowner at that time: “I favor no control, but if we must have it, let it be local.”
GCDs have often been created in response to a real or perceived threat to an area’s groundwater. The Middle Pecos Groundwater Conservation District was created in the aftermath of the disappearance of Comanche Springs due to over-pumping outside Fort Stockton. The Presidio County Underground Water Conservation District was established in the wake of a deal to export groundwater out of the county. The deal eventually failed. According to Leah Martinsson, executive director of the Texas Alliance of Groundwater Districts, “Everything is a product of history. In light of the rule of capture, groundwater conservation districts are critical in that they are working to protect the property rights in groundwater of all landowners that could otherwise be imposed upon by a single actor.” In Martinsson’s view, “Many citizens felt that it was important to impose some sort of order … to create some sort of buffer [to the rule of capture] because otherwise you never know when you’re going to be on the receiving end” of having your well pumped dry by a neighbor.
The Texas Water Code states that groundwater conservation districts, also known as underground water conservation districts, can be created in one of four different ways: 1) legislative action (usually through a bill introduced by the local state senator or representative); 2) petition by local property owners (which is submitted to the Texas Commission on Environmental Quality, TCEQ); 3) on the initiative of TCEQ (typically in a priority groundwater management area if the local property owners do not petition for it themselves); or 4) by adding area to an existing district. This involves property owners petitioning to be annexed by a district adjacent to their land.
Before a new district can be established, it must be approved by the voters within the boundaries of the proposed district. For example, the Presidio County Underground Water Conservation District was approved by the voters in 1999. These elections often involve the approval of a funding source for the proposed district and a list of directors to serve on the board.
GCDs are loosely classified into “taxing” districts and “fee-based” districts. “Taxing” districts typically receive their funding through ad valorem taxes of between $0.05 per $100 valuation to $0.35 per $100 valuation (depending on the district) and their board members are elected. “Fee-based” districts are funded through production fees which are limited to $1 per acre-foot payable annually for water used for agricultural use; or $10 per acre-foot payable annually for water used for any other purpose. Their board members are appointed by the county commissioners.
Upcoming issues of “Our Water Matters” will look at what groundwater districts do, their role in regional and state-wide planning processes, and how individual GCDs within our region came into existence.