November 3, 2021 407 PM
Groundwater districts: Local control, part of a greater whole
As we learned in an earlier issue of “Our Water Matters,” the Texas Supreme Court established groundwater as a property right in the East Decision of 1904. Also known as the “rule of capture,” this decision set the stage for conflict between neighbors because it 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.
In the wake of state-wide droughts in 1909 and 1917, the Legislature amended the state Constitution to shore up its authority over the protection of the state’s natural resources, including water. By 1949, lawmakers decided that the most agreeable way to manage the conflicts between groundwater users was to establish groundwater conservation districts, or GCDs, as the preferred method of groundwater management because they provide for local control by those most familiar with the resource and most affected by any regulation. However, by 1996, only 34 groundwater conservation districts had been created. Despite a predictable cycle of increased attention to water issues during and after the state’s frequent dry spells, Texas continued to enjoy enough water resources to meet demand and avoid major conflicts between groundwater users, and this seemed to obviate the need for more GCDs.
That all changed in 1997 with Senate Bill 1, or SB1, an omnibus bill aimed specifically at managing water issues. This would have tremendous impacts on groundwater because SB1 marked a historic initial step toward regional, state-wide water planning by setting up a system of regional planning groups to look at surface and groundwater resources and treat the state as a whole. It also mandated additional data collection to close the many gaps that made it difficult, if not impossible, to plan for the state’s future water needs.
SB1 also expanded the regulatory power of individual districts to provide for a more regionalized, bottom-up approach to planning that is better suited to managing individual aquifers, and consolidated the laws governing GCDs into Chapter 36 of the Texas Water Code. Perhaps most importantly, the bill increased the statutory authority of GCDs to manage groundwater withdrawals and required landowners to obtain permits for newly drilled water wells. Permitting processes could require landowners to report their use and specify the purpose of the groundwater being withdrawn.
Other legislation, including SB2 in 2001 and SB660 in 2011, further clarified the issues surrounding groundwater management and planning. For example, SB660 defined the term “desired future condition,” or “DFC,” as “a quantitative description … of the desired condition of the groundwater resources in a management area at one or more specified future times … [to] provide a balance between the highest practicable level of groundwater production and the conservation, preservation, protection, recharging, and prevention of waste …”
In practice, GCDs are organized into so-called groundwater management areas, or GMAs, that roughly follow a region’s aquifers. The GMAs work with consultants to parse the available data and create desired future conditions that essentially define an agreed level of drawdown in each aquifer over a 50-year period. The DFCs are defined and adopted in 5-year cycles and published in explanatory reports after a 90-day public comment period. These reports are submitted for approval to the Texas Water Development Board and, once approved, the DFCs are intended to guide the planning and permitting decisions of the groundwater conservation districts.
Although the purpose of SB1 and subsequent legislation was to implement groundwater planning where there had previously been none, there has been no targeted legislative attempt to change the rule of capture. However, as SB1’s biggest supporter, Lt. Governor Bob Bullock stated at the time “… As urban and industrial water demand continues to grow, these users will be looking for alternate sources of water to satisfy their needs. When this happens, and property owners are faced with the prospect of a large water pumper depleting their groundwater supplies, property owners may begin considering additional ways to protect their right to use the groundwater.”
These words would prove prophetic, as the number of groundwater conservation districts increased from just 34 in 1996 to 100 today, covering over half of the total land area of Texas and almost 90% of groundwater produced. GCDs remain the most effective means under the law for managing the inevitable conflict not only among existing users within a region, but also for handling conflicts that arise when outside interests come a-knocking. Indeed, many groundwater conservation districts have been created in response to a specific threat to local landowners, such as a large pumper or an export scheme.
Be on the lookout for future issues of “Our Water Matters,” where we will explore the history of how individual GCDs within our region came into existence.
Are you interested in getting more involved in groundwater issues? The Presidio County Underground Water Conservation District (PCUWCD) is looking to hire a part-time general manager and the Brewster County Groundwater Conservation District is seeking a part-time assistant general manager. No background in groundwater is required. Corresponding training is available. The PCUWCD is also looking for a Presidio County resident to serve on our board and the Far West Texas Regional Planning Group has several volunteer positions available. Contact me at [email protected] for further details.