The Path of Least Resistance: The Effects of Groundwater Law's Failure to Evolve with Changing Times Comment.

Authors

Bruce E. Toppin III

Abstract

Groundwater is a type of freshwater stored in the earth’s crust which does not flow through underground channels. In Texas, groundwater is becoming highly sought-after, and development of proper management and conservation models is crucial to preserve the resource for future generations. In Texas, ownership of groundwater is governed by the common law doctrine of absolute ownership, commonly mislabeled as the rule of capture. The absolute ownership doctrine still governs groundwater ownership, but its application has been judicially altered to limit the rights of landowners who wish to pump water from beneath their lands. Texas lawmakers also contributed to the restriction on landowners’ absolute ownership rights under the authority of the “Conservation Amendment” of the Texas Constitution, through localized regulation. This decentralized management led to the creation of groundwater conservation districts (GCDs). Going forward, these GCDs may no longer serve their intended purpose, and Texas will likely need to replace its current regulatory strategy with a more effective model, like those from the oil and gas industry. In recent years, the legislature recognized many of the problems surrounding groundwater regulation directly result from local management policies. Texas lawmakers have taken steps to centralize some aspects of statewide groundwater regulation. With the emergence of water marketing as a conduit for transporting groundwater to all areas of the state, Texas lawmakers will be forced to continuously refine the Water Code unless the legislature centralizes the regulatory model. The rapid growth in the groundwater industry parallels with early twentieth century oil and gas exploration. Texas lawmakers recognized the need to regulate the proliferating oil and gas trade. To successfully diffuse the remaining and future problems surrounding groundwater regulation, legislators should recognize the most effective approach would be to appoint an administrative agency with regulatory authority analogous to that of the Railroad Commission.

Publisher

St. Mary's University School of Law

Recommended Citation

Bruce E. Toppin III, The Path of Least Resistance: The Effects of Groundwater Law's Failure to Evolve with Changing Times Comment., 38 St. Mary's L.J. (2007).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol38/iss2/4