Texas. Property Rights. Law Suit. Water.

March 18th, 2012

This is something I should probably pay attention to.

 J. O. Dawdy, who has been a farmer for 36 years, is so worried about getting enough groundwater that he is considering a lawsuit to protect his right to it.

As sleet pounded his West Texas farmhouse one recent afternoon, Mr. Dawdy and three other farmers said that new regulations — which limit the amount of water they can withdraw from the Ogallala Aquifer and require that new wells have meters to measure use — could have crippling effects on their livelihoods.

“We view it as a real property-rights violation,” said Mr. Dawdy, who grows cotton. If the restrictions had been in place last year during the drought, he said, his land would not have produced a crop.

Water is a contentious issue across Texas, but tensions have been especially high in a 16-county groundwater conservation district stretching from south of Lubbock into the Panhandle, an area considered part of America’s “breadbasket.” There, farmers reliant on the slowly diminishing Ogallala are fighting to maintain their right to pump unrestricted amounts of water. The issue gained urgency last month when a landmark Texas Supreme Court opinion confirmed that landowners own the water beneath their property, in the same way they own the oil and gas.

The ruling opens up water districts like the High Plains Underground Water Conservation District, which covers the 16-county West Texas area and is the largest such district, to litigation from landowners, said Amy Hardberger, a water expert with the Environmental Defense Fund and a visiting professor at Texas Tech University’s School of Law. The West Texas clash, she added, is a “micro-sample of what could be happening all across Texas.” . . .

The situation reflects a basic conundrum in Texas groundwater policy, as it has evolved through the courts and the Legislature: groundwater is owned by landowners, but groups like High Plains can regulate it.

Robert Glennon, a professor at the University of Arizona’s Rogers College of Law, said that Texas is virtually the only state that functions by the “rule of capture,” which allows landowners to pump essentially unlimited amounts of water.

“Elsewhere in the U.S., groundwater is a public resource, and the state allows people to use the resource,” he said. A number of other states — including Colorado, Arizona and Idaho — have restricted the amount of water farmers can pump, he said. . . .

Many legal analysts say that the recent Texas Supreme Court ruling could make regulating groundwater tougher, though its full effects will not be known until after further court decisions. Ms. Hardberger said that groundwater districts might delay enacting new rules because of it. At High Plains, “We don’t see the need for a change” because of the ruling, Mr. Conkwright said.

Mr. Dawdy is one of five board members of a group called the Protect Water Rights Coalition. Even before the Texas Supreme Court’s ruling, they had prepared a lawsuit challenging the High Plains regulations, but they have not yet filed it.

“We all realize,” Mr. Dawdy said, “that that’s the last resort.”

So here is a description of new regulation:

Beginning in 2012 and continuing through 2013, all persons owning or operating an existing, new, or pre-district well or well system pumping groundwater from the Ogallala Aquifer must limit the total amount of production to 1.75 acre-feet (21 inches) per contiguous acre per year.

The production limit drops to 1.5 acre-feet (18 inches) per contiguous acre per year during 2014-2015, and is lowered to 1.25 acre-feet (15 inches) per contiguous acre per year in 2016 and beyond.

I will help the drought by not washing my car (I never do) and only drinking bottled water (preferably Kirkland brand). And teaching my students about this stuff. The rule of capture is the stuff of Pierson v. Post. But water is more relevant than foxes. Or not?