Beneath the Surface

In a state where water is a limited and vital resource, it is imperative to wade into the difficult issues associated with groundwater management in Texas. More specifically, this report, with the input of a diverse group of experienced professionals, provides an overview of the groundwater landscape in Texas, describing some of its key features, and then identifying five of the most important challenges to holistic, proactive groundwater management for Texas. 

To set the stage for the groundwater scenario, we list and briefly discuss some key features of Texas groundwater: 1) it is private property; 2) it is primarily managed by groundwater conservation districts; 3) its levels are declining; 4) its legal regime is not the same as the laws governing surface water; 5) it is viewed as an extractable and transferable resource; and 6) its current management framework is challenged. These aspects of Texas groundwater raise interesting and often difficult questions at many levels, in a wide range of settings, from a wide range of perspectives. Landowners; companies in search of a water supply for various purposes; water utilities; private well owners; groundwater conservation districts; river authorities; regional water planning groups; agricultural irrigators; conservation interests; municipal and industrial water suppliers and users; state agencies; government officials; policy makers; legislators; and many others are looking for answers to the questions that persist for Texas groundwater – the source of about 60% of the state’s annual water use. 

This document presents five of the major challenges to groundwater management in Texas that have been identified for further consideration and review, then briefly describes each of the five issues presented. Along with background information, the document sets out various perspectives on the issue, provides information on recent or pending litigation, and presents information on the handling of the issue in past sessions of the Texas Legislature. 

The first issue presented discusses the challenges related to regulating privately owned, yet shared, groundwater. In the 2012 case Edwards Aquifer Authority v. Day (“Day”), the Texas Supreme Court held that landowners own their groundwater in place.1 The Supreme Court described how one purpose of groundwater regulation, similar to oil and gas, is to afford a landowner his fair share of the groundwater beneath his property. But the court also stated that landowners are subject to reasonable regulation by Groundwater Conservation Districts (GCDs). The legal uncertainty over what “fair share” and “reasonable regulation” mean is upending current groundwater regulation as the districts struggle to allocate groundwater resources under this relatively new holding. 

Next, the document discusses the challenges related to groundwater management at the GCD level. GCD critics argue that it is difficult for GCDs to effectively manage groundwater in a fragmented regulatory structure. Proponents of local management of groundwater, however, argue that local control ensures representation of community values and concerns and recognition of hydrogeologic conditions specific to a district’s jurisdiction. The reality is that it can be challenging for GCDs to manage groundwater with actual and threatened litigation increasing and without sufficient funding and science to support their responsibilities under the Water Code. 

Third, the challenges associated with groundwater and surface water interactions are presented. Despite the hydrogeological relationship between groundwater and surface water in some areas of the state, Texas water law and policy are often implemented in a fashion that fails to adequately recognize this connection. The absence of a framework for conjunctively managing groundwater and surface water may adversely affect both groundwater and surface water resources. 

Fourth, the document describes the challenges related to sustainable management of groundwater. Texas groundwater statutes set the guiding terms for how local GCDs and groundwater management areas (GMAs) set management goals. Recent changes to those laws, and ongoing disputes about how much groundwater can or should be removed from an aquifer, have arguably moved the law away from sustainable management goals and toward maximizing groundwater withdrawals. 

Next, there is a discussion of the challenges associated with the marketing and exporting of groundwater. With growing populations, some utilities and cities in search of additional water supplies are turning to importing groundwater from rural areas of Texas. The existing and proposed large-scale marketing and export of groundwater is generating a variety of conflicts, pitting rural interests against urban, potentially threatening the economies, property rights, and ecology of rural areas from where groundwater is exported, and creating regulatory and political challenges for local GCDs. 

Finally, there is a brief discussion of a number of additional issues related to groundwater management in Texas, such as aquifer storage and recovery, brackish groundwater desalination, abandoned wells, and transboundary aquifers.