Increasing water demands in Texas cities are creating significant conflict over shared groundwater resources. Texas’s unique legal framework, particularly the “rule of capture,” and the limitations of current regulatory mechanisms, is creating a new gold rush among public and private entities that wish to utilize the increasingly scarce resource.
The rule of capture, established in a 1904 Texas court case and reaffirmed in 2012, allows landowners to pump as much groundwater as they can capture from beneath their property, regardless of the impact on neighboring wells or the overall aquifer level. This principle has been described as “He Who has the Biggest Pump gets the Water.” The Texas Supreme Court adopted this rule based on the then-limited scientific understanding of groundwater and the belief that regulating it would be “hopeless.”
As Texas cities continue to grow, their water demands are exceeding the capacity of their local water sources. Most recently, Georgetown in Central Texas, one of the fastest-growing cities in the U.S., has contracted to import vast volumes of groundwater from the Simsboro Formation of the Carrizo Wilcox Aquifer, located 80 miles away. This plan has resulted in a bitter fight with cities located above the Simsboro Aquifer, namely Bryan and College Station, as well as the Texas A&M University System. These entities recently sued to stop the project, which would deliver up to 89 million gallons per day to Georgetown and neighboring cities.
The regulation of these inter-regional water projects falls under the purview of groundwater conservation districts, which are often small, rural agencies. These districts may not be fully equipped or empowered to manage the competing regional water needs that can have long-term consequences for entire cities. District manager Alan Day acknowledged that Bryan “can’t claim the water” because groundwater is a private property right and that all permitting requirements have been met.
The increasing value of water is creating a new gold rush, where companies are investing heavily in extraction and transportation to serve water-scarce urban areas. This is further fueled by the rising price of water and Americans’ seeming willingness to pay enough to make these sorts of projects financially viable.
The one potential loophole in Texas water law is the Desired Future Condition (DFC), a threshold for aquifer levels beyond which new rules and pumping restrictions would kick in. However, no district in Texas has yet to hit its DFC. The prospect of reaching the DFC creates a scenario where existing permit holders and new water users will face mandatory limits, potentially leading to further conflict and uncertainty about enforcement. For now, the situation remains a race of who can take the most water before the DFC is reached.
Featured Image Courtesy Of: Talena Reese: /https://www.pexels.com/photo/american-flag-and-flag-of-texas-under-blue-sky-10471017/
