Who Owns Texas’ Groundwater?

Sen. Fraser stirs the pot with SB 332


Water is simple. Water policy, water law? Clear as crude. Today, in an interminable hearing, the Senate Natural Resources Committee discussed two bills that would, depending on your view, do nothing, radically change, slightly modify, clarify, or confuse Texas groundwater law.

The bills – one by Sen. Troy Fraser, one by Sen. Robert Duncan – certainly represent divergent views on the question of who owns groundwater. Sen. Fraser’s legislation, Senate Bill 332, is deceptively simple. It mainly turns on changing the definition of groundwater ownership by inserting the word “vested” into state law. That doesn’t sound like much but it produced a standing-room crowd today with all sorts of interests picking their sides.

Fraser insists that SB 332 simply reaffirms that landowners have a private property right to the water beneath their land. “My bill is real, real simplistic,” he said today. “It just says someone has the right to drill a well on his property.”

Not so, says Sen. Robert Duncan, a Lubbock Republican who spent most of the day asking witness after witness lawyerly questions. “I’m not getting an answer to the intended consequences much less the unintended consequences. … Nobody’s told me why we’re passing it.”

The fear is that Fraser is creating an absolutist private property right that would upend the state’s rickety system of groundwater regulation.

Right now is a particularly critical moment. Many parts of the state are moving toward pumping caps as water supplies become more and more stressed. Groundwater conservation districts, locally-controlled boards that regulate pumping, are worried that giving landowners a “vested” right to water would open the door to “takings” lawsuits in which property-owners could demand compensation from the water conservation board when told they can’t pump as much as they’d like.

Fraser and other supporters of SB 332, mostly agribusiness, deny that the bill would lead to a flurry of lawsuits. One cattleman called it a “red herring.” However, in an extended back-and-forth, Sen. Duncan pressed a representative from the Texas Farm Bureau on the question. “If a groundwater district becomes extreme … there needs to be some remedy and if it constitutes a taking, yes, there will probably be some legal action,” said Billy Bob Brown, secretary-treasurer of the Farm Bureau.

Some opponents of Fraser’s legislation questioned whether the Legislature is needlessly screwing with a system that is working (Well, sorta.)

“The times are changing in Texas,” said Jim Conkwright, a groundwater manager in the Texas Panhandle, where the Ogallala Aquifer is rapidly depleting. “We’ve got to come to realize that we cannot afford to debate this issue every two years when the [Legislature] meets.”

He added: “We have other huge issues in water in the state of Texas that need our time and thinking and our consideration. I’d like to see us move on to those without fear of takings, without fear of a groundwater district being unfair.”