St. Mary's Law Journal


Taelor A. Allen


Texas has undergone a succession of historic droughts, each one creating unique problems and controversies. The state is also one of the largest national producers of oil and gas with the Eagle Ford Shale fields contributing to the production boom. The technique used to extract the oil is called hydraulic fracturing, which requires large volumes of water to be injected at high pressures to “frac” and release gas from an underground formation. The amount of water required places even greater strain on the regional water supply. This Comment highlights legal issues raised by the high volumes of groundwater used for hydraulic fracturing in the Eagle Ford Shale with an emphasis on such usage during a drought. Water rights in Texas are highly dependent on the characterization of a particular water source—groundwater, diffused water, or surface water. Groundwater in Texas is managed by statutory regulations and the common law rule of capture. Texas took steps in 1917 to limit the rule of capture by statute. One argument against increased regulation for fracing is that remedies already exist for curtailing water overuse by way of common law doctrines and contract provisions. Local groundwater districts have the authority to manage groundwater usage within their jurisdictions by requiring permits and limiting the way in which groundwater is used. Until recently, most groundwater conservation districts have considered fracing operations to be within permit exemptions. Yet the drought which began in 2011 has led some to consider enacting specific water use restrictions against the water-intensive process. Recent case law through groundwater districts will likely hold back on efforts to enact further regulation out of concern these regulations will constitute a taking of property that requires compensation.


St. Mary's University School of Law