Our Water Matters

Chapter 36 of the Texas Water Code

Recent issues of “Our Water Matters” have explained that the judiciary and legislative branches have taken two different approaches to groundwater in Texas. In the absence of any legislation directly related to groundwater in the early 20th century, the Texas Supreme Court established the rule of capture, which essentially allows, with some limited exceptions, a landowner to pump as much groundwater as the landowner chooses, without liability to neighbors who claim that the pumping has depleted their wells. The Legislature responded several decades later with the creation of groundwater conservation districts, which are the preferred method of groundwater management in Texas because they provide for local control by those most familiar with the resource and most affected by any regulation.

Groundwater conservation districts are governed by Chapter 36 of the Texas Water Code, which defines groundwater as “water percolating below the surface of the earth.” Chapter 36 grants broad authority to groundwater conservation districts to manage, conserve and protect groundwater through permitting and rulemaking. Under the powers granted by Chapter 36, “A district shall require a permit for the drilling, equipping, operating, or completing of wells or for substantially altering the size of wells or well pumps.” Chapter 36 further stipulates that “No person, firm, or corporation may alter the size of a well or well pump such that it would bring that well under the jurisdiction of the district without first obtaining a permit from the district.” Once a well is drilled, the owner or driller is also required to submit a drilling log to the groundwater district.

These requirements enable districts to better track the number of wells being drilled in each aquifer and the amount of water being withdrawn from each well to avoid the Ogallala Aquifer phenomenon, better known as “too many straws in too small of a cup.” Toward this end, Chapter 36 also grants groundwater conservation districts the power to impose spacing requirements “to minimize as far as practicable the drawdown of the water … [and] to prevent interference between wells.”

In addition to drilling permits, some wells may also require operating permits. Typically, a well owner must apply for an operating permit if the water from the well will be used for agricultural or commercial activities. Such wells must be equipped with a meter and the amount of water used must be reported to the district. The operating permit holder must also pay fees for the water that is used, which Chapter 36 sets at “$1 per acre-foot payable annually for water used for agricultural use” and “$10 per acre-foot payable annually for water used for any other purpose.” The best way to understand an acre-foot is to envision an area roughly the size of a football field completely covered with one foot of water.

Most wells, however, are exempt from operating permits under Chapter 36, including wells “used solely for domestic use or for providing water for livestock or poultry on a tract of land larger than 10 acres” and provided that such wells are “incapable of producing more than 25,000 gallons of groundwater a day.” Other exemptions apply to water wells drilled for oil and gas exploration or for mining activities. But a water well to supply such activities is subject to a variety of restrictions. The water well must be used “solely” to supply water for a rig that is “actively” involved in activities related to an oil or gas well permitted by the Texas Railroad

Commission. A water well under this exemption must also be located on the same lease or field associated with the oil or gas drilling rig. In other words, the land where the water well is located must be owned by the same person or entity that owns the land where the oil and gas exploration is occurring. Groundwater districts may also require such wells to meter and report the volumes of water being produced based on their own specific rules. But Chapter 36 prohibits districts from denying a permit for such wells if the application meets all district rules.

Even if a well is exempt, Chapter 36 requires that it must “be registered in accordance with rules promulgated by the district” and “be equipped and maintained so as to conform to the district’s rules requiring installation of casing, pipe and fittings to prevent the escape of groundwater from a groundwater reservoir to any reservoir not containing groundwater and to prevent the pollution or harmful alteration of the character of the water in any groundwater reservoir.”

Chapter 36 has been crafted and amended over many years in a very conservative and regulation-averse environment. This has resulted in a somewhat patchy approach to groundwater management with plenty of opportunity for conflict. Tune in to future issues of “Our Water Matters,” where we will continue to explore the rich history of water, regulation and conflict in Texas.

Trey Gerfers is a San Antonio native and serves as board chairman of the Presidio County Underground Water Conservation District. He earns his living as a translator of technical documents from German to English for the German and Swiss pharmaceutical and medical- science industries. Trey has lived in Marfa since 2013. He can be reached at [email protected]