Texas Environmental Law Journal
Texas has flourished in recent years, and its continued growth is predicated on access to groundwater resources. Texans have a long-standing dependence on groundwater, which accounts for 60% of all water withdrawn in the state. The State’s ability to provide sufficient groundwater resources depends on effective groundwater management.
Texas groundwater management has a long history of intertwined court decisions and legislation. The common law of groundwater was established by the Texas Supreme Court in accordance with the English common law right of capture. This rule was subsequently modified by the Legislature through the Conservation Amendment to the Texas Constitution, which placed the duty to implement groundwater policy squarely with the Legislature. The Legislature took on the responsibility of governing groundwater through regional planning processes such as the establishment of Groundwater Conservation Districts (GCDs). Their purpose was to “provide for the conservation, preservation, protection of groundwater.” Court decisions regarding groundwater issues deferred to both the conservation amendment and subsequent legislative efforts to manage groundwater.
The growth of regional planning processes paired with increased demand raised questions regarding when ownership of groundwater began. Courts never stated whether ownership was vested in place or if the water must first be captured. This was resolved in Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012). Although the Court acknowledged the rule of capture was applicable, the Court clearly stated that, like oil and gas, right of capture was synonymous with absolute ownership. There are several reasons why the Day court departed from precedent. By aligning groundwater with Texas oil and gas law, the court may have been attempting to extend correlative rights where they were not previously present. Although correlative rights have not previously been present in groundwater law, perhaps they will be now.
Amy Hardberger, World’s Worst Game of Telephone: Attempting to Understand the Conversation Between Texas’s Legislature and Courts on Groundwater, 43 Tᴇx. Eɴᴠᴛʟ. L.J. 257 (2013).