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Archive for July, 2011|Monthly archive page

Water Law Fatwas: Recent and Possible Next Steps Toward Preserving the Ogallala

In Agriculture, Landowners, Legal, Texas Law, Water Law on July 19, 2011 at 8:12 AM

In June 2011, the Texas Legislature passed and Governor Perry signed into law S.B. 332, amending the Texas Water Code. While praised in various news media outlets as a victory for land owners’ property rights, the bill also contains text that may have the potential to further limit the Rule of Capture.

Under the unmodified Rule of Capture, the roots of which go back to the English common law, there is no limit to the amount of water people may withdraw from sources directly beneath their land—as much water as the landowner can “capture” becomes personal property. Though this rule would theoretically lead to optimal water use where a single person owns an entire aquifer, it leads to a tragedy of the commons if more than one person draws from the same aquifer. That is, where single ownership adheres, the landowner is incentivized to deplete the aquifer optimally because only the landowner will suffer the consequences of too rapid a depletion. Where there are multiple owners, however, each landowner is incentivized to take as much water as possible without regard to reasonable use and preservation because other landowners may use up the limited resource first. Critics of the Rule of Capture often describe this dynamic as a “race to the bottom.” Texas has a permitting and rulemaking system, recently modified by S.B. 332, that helps limit this negative aspect of the Rule.

Though explicitly preserving “defenses to liability under the Rule of Capture” (but leaving intact civil penalties imposed by the state), S.B. 332 contains some text that has the potential to further limit the Rule’s breadth by requiring Ground Water Conservation Districts (GWCD), the administrative units charged by Texas law with regulating groundwater usage, to consider an aquifer’s recharge in its rulemaking. Such a requirement could be an important development. Both S.B. 332 and its predecessor explicitly allow a GWCD to “provide for . . . recharging of the groundwater or of a groundwater reservoir or its subdivisions in order to control subsidence, prevent degradation of water quality, or prevent waste of groundwater.” Only S.B. 332, however, contains text that requires consideration of recharge: “In adopting a rule under this chapter, a district shall: consider the public interest in. . . recharging. . . of groundwater, and of groundwater reservoirs or their subdivisions.”  This fact, combined with the fact that the new text arguably provides authority to GWCDs to consider recharge issues for the mere sake of sustainability—instead of solely for the prevention of land “subsidence,” water “degradation,” and “waste”—suggests that Texas lawmakers continue to worry about the lifespan of Lone Star aquifers, particularly that of the great but diminishing Ogallala.

Such concern is understandable, as fresh water is becoming increasingly precious in a world whose population has more than doubled in the last half century. Furthermore, and because (in the prominently displayed words of the High Plains GWCD home page) “there is no substitute for water,” many international affairs experts predict that the world’s water supplies will be at the center of the next resource-incited war.

Because Texas is not the only state to draw from the Ogallala, however, the tragedy of the commons poses an ongoing and significant threat to the aquifer at an intergovernmental level. In other words, why should Texas lawmakers be shy about depleting the Ogallala unless they have an assurance from Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, and Wyoming (the other states lying atop the Ogallala) that they too will be responsible stewards of this natural resource. Such mutual assurance is the only way to make sure the Ogallala is used wisely.

An interstate groundwater compact (a congressionally approved treaty between states) would make such an assurance binding. While numerous interstate surface water compacts exist, there are currently no interstate groundwater compacts. This is a curious juxtaposition—probably a result of a later developed understanding of the nature of groundwater—as groundwater is more vulnerable to the tragedy of the commons than surface water, due in part to the fact that groundwater is less easily renewed. Until a groundwater compact (or some other law that is binding on the states) is ratified and approved, state lawmakers will understandably allow depletion of the Ogallala at a greater than optimal rate.