Until fairly recently, there has been little governmental regulation of the drilling of and production of groundwater in Texas. Texas historically followed the common-law “rule of capture,” which holds that, unless the groundwater rights have been severed from the surface, the surface owner is the owner of all groundwater he/she can produce from a well located on his/her land and has no liability to adjacent owners whose groundwater might be damaged by such production. But the rule of capture is quickly changing. Groundwater rights are now being placed under the control of Groundwater Conservation Districts, which have authority to regulate the drilling of and production from water wells within their jurisdiction. What follows is a brief summary of what is now happening – the development of a plan to regulate the production of groundwater from all of the major aquifers in Texas. Landowners should be aware of these happenings.
There are now 93 Groundwater Conservation Districts in Texas, and the legislature creates new districts each time it is in session. In the last session, the legislature authorized six new districts. A map showing what areas of the State are within the boundaries of Groundwater Conservation Districts can be found here. The legislature followed the philosophy that groundwater should be regulated and controlled by local elected authorities within each District who could pass their own rules and regulations to regulate groundwater as best fits their local conditions. Therefore, within certain limits set by the legislature in the Water Code and the enabling legislation for each District, each District can pass its own rules concerning what wells it will permit and regulate, and what limits, if any, it may place on the production, use and export of groundwater in its District.
The legislature has also created a system requiring Groundwater Conservation Districts to participate in a state-wide water planning process. It divided the State into 16 regional water planning areas called groundwater management areas (GMAs). The Groundwater Conservation Districts in each of these planning areas are required to participate in the creation of a water plan for that planning area. To assist in this planning process, the Texas Water Development Board has created computer models of each of the aquifers in Texas. Those models, called “groundwater availability models” (GAMs), show how much water can be withdrawn from each aquifer under different conditions and the effect on the aquifer of specified levels of withdrawals. The models help to establish what is known as “managed available groundwater” (MAG) in each aquifer. The participants in the planning process within each groundwater management area then use these models to establish “desired future conditions” (DFCs) within the groundwater management area. Finally, each District must then use this information to develop its own groundwater management plan. The District’s plan must seek to manage withdrawal of groundwater within its District so as to be consistent with the desired future conditions and managed available groundwater within that District. A map of the groundwater management areas in Texas can be found here.
If this all sounds complicated to you, you are not alone. The groundwater world has come to be populated by acronyms that will soon be familiar to a lot of people with interest in the subject. Here are a few:
GCD Groundwater Conservation District
GAM Groundwater Availability Model
GMA Groundwater Management Area
MAG Managed Available Groundwater
DFC Desired Future Conditions
How all of this planning and regulation works itself out over the next few years will determine the future of the use of underground water in Texas.
Groundwater Conservation Districts are managed by a board of directors elected by the residents of the district. They have a staff consisting of at least a paid director, and they hire lawyers, engineers and other consultants to assist them in meeting the statutory requirements for Districts. They have public meetings and must post notice of those meetings with an agenda, like other public entities.
The Texas Water Code and each District’s enabling legislation determine what powers Districts have to regulate groundwater. By statute, certain wells are “exempt,” meaning that production from those wells cannot be regulated or restricted. For example, wells used solely for domestic purposes or providing water to livestock or poultry, and which are not capable of producing more than 25,000 gallons of water per day, are exempt. Districts may, however, require that such wells be registered, and may have regulations concerning how those wells can be completed. Some Districts require registration of exempt wells, and some do not. Districts may also exempt wells that are not exempt by statute.
Districts may also regulate the spacing of wells (how far a new well must be from existing wells completed in the same aquifer), and how much water can be produced from (non-exempt) wells. If a District determines that existing permits exhaust all available groundwater in an aquifer, it can refuse to issue more permits for wells in that aquifer. District rules may grant preference to existing wells, based on their historical use. Districts may pass rules that require reduction in production from wells under drought conditions, to preserve managed available groundwater. Districts may, within certain limits, also regulate the export of groundwater from their jurisdiction. Districts are funded by property taxes or by fees on pumping, or both.
Different Districts have approached their responsibilities in different ways. As a result, rules and regulations concerning permitting and use vary widely from one District to another.
There is lots of information about Districts, GMAs, GAMS and MAGs on the Texas Water Development Board website, http://www.twdb.state.tx.us/GwRD/pages/gwrdindex.html .
Welcome to the new world of Texas groundwater regulation.