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Bruce Elfant

Bruce Elfant

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Constable's Notebook - June 2011

Thomas Fuller observed back in 1732 that “We never know the worth of water till the well is dry.” With a rapidly increasing population along with increased agricultural and oil and gas production, demands for water are outpacing the supply which in the coming years will threaten many communities and ensure significantly higher water rates. Many state water experts believe that there is no more important issue facing Texas than ensuring an adequate water supply for future generations.

Under State law, surface water (lakes and rivers) belong to the State of Texas while state law and many court rulings, have established that ground water (underground) belongs to individual property owners. River authorities such as the Lower Colorado River Authority regulate surface water and ground water districts have limited regulatory authority over pumping of water. River authorities which have more regulatory authority, have to balance the available supply of water with the increasing demands within its service area. When cities like Austin receive more water it may mean that rice farmers down stream receive less water. When drought conditions exist it may mean that everyone receives less water.

Under the “right of capture” doctrine property owners have the right to pump virtually an unlimited amount of water from under their property either for personal use or for resale to other businesses and communities. Business Week Magazine described Texas laws regarding pumping ground water as “unusually lax”. In fact, state court rulings have determined that a property owner’s right to pump water prevails even if their neighbor’s water supply may be adversely affected. A few years back Ozarka Water was sued by neighbors for malicious and negligent pumping of groundwater in association with their bottling business and the Texas Supreme Court ruled that it under the “rule of capture” it was OK to drain their neighbor’s water supply. T. Boone Pickens, the oil baron, and now the largest individual owner of water in the nation, has bought up land and substantial water rights under an aquifer that serves as the primary source of water in the Panhandle. Others are also scrambling to buy up water rights throughout Texas. Community leaders across the state have expressed concerns that their future water supplies are being threatened by the basically unregulated sale of large amounts of water from their underground aquifers and piped to other parts of Texas.
State legislators have considered establishing and funding a 50 year water plan for Texas but have failed to act. For any state plan to be effective or affordable the Legislature will have to address the inherent conflict between the rights of property owners to pump unlimited amounts of water versus the rights of their neighbors and the greater community. Cities and counties will also have to strike a balance between the rights of their citizens to use as much water as they can afford and the necessity to limit use and mandate aggressive conservation and water efficiency measures.

Thomas Fuller warned us nearly 300 years ago that we shouldn’t wait to act until the water in the well runs dry or becomes too expensive. Let me know what you think at bruce.elfant@co.travis.tx.us.



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