In 1991, a catfish farm near San Antonio began using as much as 40 million gallons of water per day; and this water drawn from the aquifer equaled approximately 25 percent of San Antonio’s total pumpage.1 Large cities in Texas are now competing for water wherever they can find supplies, including from under the rural communities.2 Since 75 percent of groundwater goes to irrigation, for rapidly growing cities agriculture holds the last big pool of available groundwater.3 By 2050, almost 900 cities representing 38 percent of the projected population of Texas will need to either reduce demand through conservation or develop additional sources of water supply.4 If a drought comparable to the record drought of 1950-56 occurs with projected 2050 conditions of water demand, less than half of the municipal and industrial demand could be met.5 Although Texas policy makers have encouraged the decentralized allocation of groundwater to users, powerful competing interests vie for more groundwater; and this competition calls into question whether or not the current regulatory approach provides a rational groundwater policy for the twenty-first century.
In writing about water rights and economic development, the eminent American legal historian, Morton J. Horwitz, observed this with respect to the mill dams in New England at the end of the eighteenth and beginning of the nineteenth centuries: “the evolving law of water rights had a greater impact than any other branch of law on the effort to adapt private law doctrines to the movement of economic growth.”6 Just as mill dams strained New England’s surface watercourses, the rapid growth of Texas industries and cities depletes its aquifers. In order to regulate groundwater in light of the rule of capture, the Texas legislature in 19497 first authorized the creation of “underground water conservation districts” later renamed groundwater conservation districts (GCDs). The purpose of a GCD is to provide plans and rules for conserving, preserving, protecting, and recharging groundwater to prevent waste of groundwater.8 The first district was formed in Lubbock in 1951. Of the 97 groundwater districts in existence as of 2020 (83 have been ratified by 2005); and in whole or in part, these districts cover more than seventy percent (70%) of the state’s counties.” 9 Districts that do not cover an entire aquifer are required to coordinate with other districts in the aquifer to manage groundwater.10
Presently, community is set against community, because laws and policies favor localism (a legacy of the liberal tradition in America). Some analysts promote statewide regulation as the fulcrum for the sustainability of groundwater. Other experts argue that other regulatory controls or free market conditions adequately serve the citizens of Texas. As the demands are not satisfied, can the fragmentation in the current regime meet the constitutional mandate?11
This essay covers the history of GCDs with special attention given to the Ogallala and Edwards, two major aquifers. By way of background, certain topics will be discussed as follows: groundwater rights, aquifers, rule of capture, legislation, court cases, and state water plans, planning groups, and best management practices. I look at the relationship among groundwater, law, and polity, and explore the development of groundwater use regulation.
A groundwater right is a recognized property right in Texas. This water right can be sold, leased, or transferred to another person. Therefore, the law of groundwater rights determines who can use the water, in what quantities, and for what purposes, and often specifies when and where the water can be used.12 Texas citizens believe their aquifers are an example of a common property resource. Common property resources are not controlled by a single agent or source. Prior to the authorization of GCDs, land ownership was the sole legal requirement for participation in the common property system; and this still prevails in the unregulated areas- thirty percent (30%) of the area of the state. There is also a need to deal with state-owned lands.13
According to water lawyer, Ronald A. Kaiser, “Texas is mining its aquifers by removing more water than can be recharged on an annual basis. About one-half of all municipal water comes from groundwater.”14 The Texas Water Development Board (TWDB) has identified and characterized 9 major and 20 minor aquifers based on the quantity of water supplied by each.15 In the case of drought when recharge is reduced some of the water discharged from the aquifer must be withdrawn from storage, resulting in a decline of the water levels.16
This pattern characterizes the High Plains where the gigantic Ogallala aquifer provides water to all or parts of 46 counties. Although many communities use the aquifer as their sole source of drinking water, approximately 95 percent is used for irrigation.17 The depletion of aquifers for irrigation purposes in the face of the expanding water requirements of cities raises questions about the sustainability of some important farming systems on the High Plains.
Kaiser and Frank F. Skillern, a Professor of Water Law at Texas Tech University School of Law, point out that the Ogallala Aquifer receives little natural recharge from rain or snowfall and more water is pumped from the Ogallala than all the other Texas aquifers combined. In contrast, the Edwards Aquifer can be quickly replenished by rainfall.18 The Edwards covers approximately 4,350 square miles in parts of 11 counties. Approximately 54 percent is used for municipal supply with San Antonio obtaining most of its water supply from the aquifer.19 “The inability to regulate the Edwards Aquifer through local government placed the initiative to limit pumping from the [Edwards] Aquifer in the state’s hands,” 20 asserted Todd H. Votteler, who served as Special Master for the case of San Antonio v. Sierra Club.21 The result was enabling legislation creating the Edwards Aquifer Authority (EAA)22 with specific statutory authority to regulate and limit groundwater production from the aquifer.23
The rule of capture24 has often been called the “law of the biggest pump,” because Texas courts have adopted, and the legislature has not modified, the common law rule that a landowner has a right to take for use and sale all the water that he can capture from below his land.25 Presently, Texas is the only major state to adhere to the rule of capture in its traditional form.26 Texas follows the western doctrine of prior appropriation for surface water. The rule of capture and prior appropriation encourage incompatible behaviors by water users, depending on the source from which one draws water. This contributes to the deleterious effects of droughts by treating surface and groundwater as separate legal entities while ignoring the fundamental hydrologic connection between them.27 Because of the demands of neighboring communities, farmers and ranchers have turned from being advocates for the rule of capture to its most vocal opponents.28
“The U.S. Supreme Court recognized that judges owe deference to legislative determinations and should not substitute their weighting of the equities for that stuck by the legislators,”29 observed James Willard Hurst. Texas voters added the Conservation Amendment to the Texas Constitution in 1917.30 The Amendment declared the conservation of the state’s natural resources to be public rights and duties.31 Beginning in the 1950s, the state courts began to call upon the legislature to address management and protection of groundwater through the powers granted in the Texas Constitution.32 Since the amendment charged the legislature with these duties, in its decisions over the past half-century, the Texas Supreme Court has overwhelmingly reiterated the Legislature’s power to regulate groundwater.33 “Not much groundwater management is going on,” insisted Texas Supreme Court Justice, Nathan L. Hecht, and “[i]n the past several decades it has become clear, if it was not before, that it is not regulation that threatens progress, but the lack of it.”34 Meaningful reform could protect the historic uses and place restrictions upon massive withdrawals.35 Otherwise, catfish farms and other profligate users squander this life-sustaining natural resource.
In 1997, Texas Senate Bill 1 (S.B.1)36 created a long-range, bottom-up, water planning process in which regional water planning groups (RWPGs) were responsible for assessing the needs for water in their regions during drought-of-record conditions and developing conservation, management, and mitigation plans to meet those needs.37 Under S.B.1 the local GCDs form planning groups that submit their proposals directly to the TWDB for inclusion into the five-year state water plan.38 Senate Bill 239 passed in 2001 amended, respectively, sections 36.116 and 36.122 of the Texas Water Code by outlining a groundwater conservation district’s specific powers to regulate production of groundwater by delineating the methods that might be included in the district’s rules and setting out the authority of districts to regulate transfers of groundwater out of district.40 In Senate Bill 332 (2011) the Texas Legislature made substantive changes to the groundwater ownership provision in the Water Code.41 Now the Texas Water Code recognized that the landowner owned the ground water beneath his land as real property.42
GCDs do not divest landowners of their marketable ownership rights; however, such rights become subject to rules promulgated in the districts. These rules may restrict pumping, require permits for wells, delineate well spacing, establish maximum rates of water use, and define out-of-district export requirements.43 A permitting program is the most administratively efficient method for a GCD to regulate activities.44 The rules of some districts have severely limited or extinguished landowners’ rights to produce groundwater for the benefit of historic, existing or local use.45 Most of the conflict within GCDs involves their permitting rules to protect and define historic use.46 Although the districts are locally controlled and managed, these entities are subject to some state regulatory requirements. “Water for Texas—2002” is the first state water plan since the passage of S.B.1. According to the TWDB, “[t]he process focused on local and regional decisions to help achieve the goal of increasing the chance of plan implementation over that of previous, more centralized plans.”47 The parts must be understood before any sense can be made of the whole.
In order to develop a statewide water plan, Texas is divided into 16 regions and each region submits its plan to the TWDB. If disputes arise between the management plans of GCDs and those of the RWPGs, then the Texas Water Code provides a mechanism for settling these disputes.48 The Texas Water Code addresses groundwater issues and “creates the boundaries of RWPGs, but issues no mandates as to what they must do.”49 Additionally, the Texas Legislature created the Texas Water Conservation Implementation Task Force (Task Force); subsequently, the Task Force prepared the Best Management Practices (best practices) in partial fulfillment of their charge to review, evaluate, and recommend optimum levels of water use efficiency and conservation.50 Waste has been defined by Texas courts as the intentional loss of water. It is possible that this definition could change to best practices as specified by the Task Force. Conservation standards have been proposed for municipalities. These standards could be enforced by the denial of TWDB funding.51
In Texas, the mineral estate is the dominant estate over the surface estate. A body of laws and regulations has evolved as Texas became one of the leading oil and gas producing areas of the world. Therefore, Texans have had a long association with regulation of oil and gas by the Texas Railroad Commission—a powerful state agency. Donald Worster, in his brilliant book, Rivers of Empire, reviewed the problem of how to authorize the authority without running the risk of setting up a tyrannical leviathan.52 Worster surveyed the modes of water-controlling societies, partly through the work of Karl Wittfogel. Worster quoted Wittfogel, “the resulting regime was decisively shaped by the leadership and social control required by hydraulic agriculture.”53 Since the greatest portion of groundwater goes into irrigation, local control by farmers and ranchers in this sense does represent social control by hydraulic agriculture.
In 2016 the Texas Supreme Court in Coyote Lake Ranch 54 announced that the accommodation doctrine for adjusting correlative rights that has applied to oil and gas will now apply to groundwater owners. The surface owner must prove that the accommodation doctrine prohibits certain conduct from the groundwater owner in its exercise of correlative rights via-`a-vis the surface owner. The Court found enough similarities between hydrocarbons and groundwater to apply the same legal principles. A key holding was that groundwater estates like mineral estates are dominant to surface estates when severed. However, Amy Hardberger, a professor of water law at St. Mary’s University School of Law, believes groundwater cannot be addressed with a “mine” mentality because groundwater is not mine, but ours.55 Hardberger says you cannot assume that groundwater is only valuable when severed. The interconnections between surface water and groundwater serve as a mandate for additional safeguards. Is regulation essential to its regulation and use?
“Management by a state board,” noted environmental historian, John Opie, “was out of the question, federal control unthinkable.”56 This statement represented the consensus of the organizers of the Texas High Plains Underground Conservation District No. 1. If controls were inescapable, Texans preferred control by local people.57 In the High Plains region, residents have turned to state and federal governments after drawing down their portion of the Ogallala.58 Having Lubbock and Amarillo as its key cities, the High Plains has remained basically an extensive farming and ranching region--dependent upon irrigation. Nevertheless, water czars such as T. Boone Pickens in Amarillo have assimilated large tracts of land and plan to sell their groundwater to the key cities. This conflict arena between rural and urban water users cannot be over emphasized. Indeed, numerous users often span state and national boundaries.59 The water problems of other states affect water resource management. The managers who control the GCDs are geared to satisfy local constituencies, making consideration of interstate water issues problematical.60
There needs to be key protections so that regulations apply broadly to all water users similarly situated. Otherwise, historic users “will be subject to subjective and ad hoc localized decisions.”61 For example, in the Guitar case62, the district court in Hudspeth County ruled in favor of the local GCD, and upheld its new rules that prevented the operation, among other things, of some of the wells owned by Guitar Holding Co., L.P. (Guitar owns 20% of the surface estate within the district and has maintained a long-term historic use). Ultimately, before the Texas Supreme Court Guitar prevailed when the Court held “the amount of groundwater used and its beneficial purpose are components of ‘historic or existing use.’” 63 The Court ruled that the local GCD’s “discretion to preserve historic or existing use is accordingly tied both to the amount and purpose of the prior use.”64 Since some landowners were more interested in marketing water outside the GCD, the Court reviewed the GCD’s transfer rules and found them invalid.65
On August 17, 1956—toward the tail end of the drought-of-record—the level of the Edwards Aquifer fell to a record low. Comal Springs went dry for five months, killing all aquatic life including the endangered fountain darters.66 The Endangered Species Act became the instrument that eventually brought state regulation to the aquifer and the end to the unrestricted withdrawals.67 Federal intervention was necessary before Texas legislators enacted legislation to protect the Edwards Aquifer. Some early American water experts also recognized the need for rational water planning.
John Wesley Powell, the intrepid nineteenth-century explorer, writer, and head of the United States Geological Survey from 1881 to 1894, after exploring the American West, recommended that the “entire arid region be organized into natural hydrographic districts instead of states, counties, townships, or other political units.”68 Powell recognized the overarching significance for the management of western water supplies. Instead of instituting watershed management, the federal government went on a dam-building spree that did not subside until after World War II. Marc Reisner, the western journalist who wrote the highly acclaimed Cadillac Desert, insisted the western states felt confident—and he included the Texas High Plains—that “when they ran out of water, the rest of the country would be willing to rescue them.”69
Since the establishment of the Environmental Protection Agency in 1970, federal regulation over national watercourses has increased. The Acting Assistant Administrator for Water at the U.S. Environmental Protection Agency, Benjamin H. Grumbles, declared, “[o]ur approach to integrated water resources management should be carried out on a watershed basis . . .”70 Déjà vu to Powell’s argument for watershed management; and, the plan again centers within a major federal agency. U.S. Senator David Durenberger believed in 1986 that groundwater is a natural resource and its contamination continues to occur since the states’ activities are limited without a federal presence.71 A failure to address water problems in a timely fashion—as the experience of Texans with the Edwards Aquifer showed—will prompt management intervention by federal agencies such as the U.S. Corps of Engineers, Fish and Wildlife Service, and Environmental Protection Agency. Although federal jurisprudence has historically relegated water management to the states, a failure by Texans raises the risk of increased federal regulation.
Rights to groundwater may be severed from the land and made available for sale. Therefore, Texas landowners have vested rights to groundwater even if they have never captured one molecule of water. “Tradable water rights potentially can encourage conservation and a more economically efficient allocation of scarce water resources,”72 asserted Kenneth D. Frederick. Elected officials would be less able to deliver water to particular constituencies under a market system.73 This “water ranching” has allowed the San Antonio Water System to purchase rights allotted to other users, notably farmers and ranchers in the surrounding counties.74 Bonnie G. Colby discussed the fascinating subject of “cap-and-trade”—a policy approach “in which use of the resource is capped, use permits are allocated, and a permit trading mechanism is established.”75
Texas could adopt reasonable use as the approach, thereby increasing the chances for statewide regulation to succeed. Arizona is 1980 adopted reasonable use for its groundwater by establishing state control over regulation. The Texas Legislature will have to abrogate the rule of capture in order to install the reasonable use approach. The Texas Water Code restricts a GCD from having the power to regulate wells outside its district; thus, neighboring districts can deplete its groundwater by excessive pumping. Formal adoption of reasonable use would encourage districts to work together for aquifer sustainability.76 As harmful uses are identified, new norms could apply prospectively. The water users could shift to new reasonable uses or sell their water.77
A position calling for statewide regulation may make good sense for several reasons: (1) GCDs have failed to serve public law by safeguarding groundwater, (2) federal intervention may increase unless Texas can exhibit sustainability of its aquifers, and (3) water ranching should be facilitated so that groundwater will move to its highest and best uses based upon the overall needs of the state.
Even Justice Hecht in his concurring opinion in the Sipriano case, believed it is more prudent for the Texas Supreme Court to wait and see rather than upset the new framework of S.B.1 before it had time to develop.78 “S.B.1 clarifies that it is the policy of the state that groundwater management is best accomplished through local groundwater districts, thus modifications on the rule of capture will be made in the districts,”79 argued Kaiser and Skillern. In capping the annual withdrawals from the Edwards Aquifer, the Texas Legislature resorted to special legislation in 1993. These laws create powers over a vital resource; therefore, the EAA and the districts will be challenged as they attempt to exercise these powers.80
Texans are noted to prefer local hegemony. In spite of this prevailing attitude, the state of Texas is the de facto owner of surface waters. Regulation of surface waters by the state caused takings challenges in the courts: the state has withstood these challenges under its police powers. With the rule of capture, whereby a landowner has a property right to absolute ownership of groundwater, a takings challenge is much more viable.81 The rule of capture lacks compatibility with the groundwater regulatory scheme because a district cannot control what happens in the surrounding districts. For example, San Antonio has purchased land in Bexar County situated over a different aquifer than the Edwards. The city has a “big pump” and farmers in the area are defenseless to stop the city’s withdrawals.82 Knowing the Texas tradition- that local is best-the Texas legislature rather than doing nothing opted to authorize GCDs and regional water plans so that some safeguards could be implemented.
Eventually the Day case before the Texas Supreme Court in 2012 pitted two farmers and stockmen against the EAA and the State of Texas. Attorneys filed twenty-four amicus curiae briefs.83 The Court in a unanimous opinion wrote that a “landowner is not entitled to any specific molecules of groundwater or even to any specific amount . . . .” 84 They explained that the Court had never precisely ruled whether groundwater can be owned in place.85 Accordingly, their primary ruling was that the landowner owns absolute title in severalty to the groundwater in place beneath his or her land, thereby following similar rulings with respect to oil and gas being owned in place. The only qualification being that such ownership is subject to police regulation.86 The Court held that “landowners do have a constitutionally compensable interest in groundwater.” 87
The Bragg case (2013) evaluated the factors enumerated in Penn Central for determining whether or not a takings claim had occurred with respect to groundwater in the Edwards Aquifer.88 The Court held in Bragg that a takings claim was proven, compensation should be awarded, the EAA was the proper party, the valuation should be determined at the time of the takings, and the property “actually taken is the unlimited use of water to irrigate a commercial-grade pecan orchard.89
Is federal intervention more likely with the network of GCDs? Will the marketing of water rights be enhanced with a statewide regulatory commission? Has there been enough time since S.B.1 for a fair assessment to be made of how well GCDs have managed groundwater? State legislators follow the common will of their voters’ preference for local autonomy. The Texas Railroad Commission has unitized oil and gas leases for better field results and greater equity for the participants. The halcyon days when the Ogallala Aquifer was thought to contain an inexhaustible supply of good water have now long passed us by. In fact, additional regulation may be advisable. Nassim Nicholas Taleb does not favor regulation, but warns that some systemic effects may require regulation. Talab says, “If you can’t effectively sue, regulate.” 90 The impact of groundwater rights on Texans mounts; accordingly, the legislators need to address the modern trends.
At the beginning of the twentieth century, the city of Los Angeles touched off the most vicious water war in United States history when it transported the water of Owens Valley (about 38,000 acres of fruit orchards, melon vines, and alfalfa) to the city and its environs.91 This outlying community was unable to protect its identity and way of life. Char Miller emphasized, “[w]ater is going from rural to urban use, from agriculture and ranching to household, factory, or recreational use.”92 San Antonio, El Paso, Amarillo, and many smaller Texas cities are in a grand search for water. As with rural Owens Valley, these vulnerable communities that transfer their groundwater will experience losses of employment, diminished tax bases, and changes to their ecologies. The sale of groundwater can even alter the quantity of water in a stream, just as the failing levels in the Edwards Aquifer left the Comal Springs dried up.
Horwitz quoted the legendary American jurist, Oliver Wendell Holmes, Jr., in the attack by Holmes on absolute property rights: “The absolute protection of property however natural to a primitive community more occupied in production than in exchange is hardly consistent with the requirements of modern business.”93 American property law mediates between protection of the individual freedoms of property owners and the protection of the interests of the communities. Property rules usually represent the harmony of a variety of individual and community interests.94 In talking about a well-ordered society, William J. Novak claimed, “rights and duties were guaranteed actively and relatively in an ongoing calculation of the reciprocal rights and duties of others and the good of the whole in a constantly changing society.”95 Nineteenth-century America was a well-regulated society, as well, and the extensive regulation--sometimes ignored in modern historical monographs--represented Novak’s primary thesis.
Because the destiny of groundwater for Texans is supercharged and permeated by law, politics, and science, perhaps a state commission removes critical paths for decisions from local politicos, water czars, and lawyers and places these decisions at the state level—a level responsible to Washington, D.C. and to the treaties and protocols with respect to Mexico.96 If access to these resources is not controlled by a single agent or source, the resources will be exploited on a first-come, first-served basis.97 Also, the fragmented regulation by GCDs throws up barriers to trading groundwater rights. If one accepts an economic premise that water will move to its highest and best use in a free market, then statewide regulation of groundwater could provide a uniform trading framework. Not only will a strong statewide regulation stimulate the marketing of water rights in a coordinated manner but also thwart federal intervention. Some large companies or interests may find it easier to control regulatory boards at the state rather than local levels. Having considerable sway with the EAA, for example, carries potentially more weight than cronyism with local district officials.
There could be statewide watershed planning so that a water czar does not just reach out and seize the groundwater rights, then selling to the highest bidder without respect for the overall integrity of the watershed management plan. Currently, the best practices soundly articulated by the Task Force are only suggestions and not mandates. With the passage of Senate Bills 1 and 2, Texas legislators have recognized the need to increase the regulation of groundwater. These statutes passed in spite of legislators’ insistence, thus far, for not securing legislation to change the rule of capture. Some experts recommend giving these laws time to work before consideration of a more centralized system. If the districts are analogous to “loose horses in a field”98 with each one following his nose, how much time should expire in anticipation of a rational regime?
Although the legal rights to capture groundwater continue to follow the rules of capture and ownership in place, aquifer sustainability in the face of greater than historical withdrawals propels Texas solons toward a continued assessment of regulation in order to assure fairness and equity, and to safeguard ancient groundwater.99 The Day case ruled in favor of regulatory (police) powers. Although not all of Texas land is subject to GCDs, local groundwater districts are called upon to perform the difficult task of striking a balance between the powers granted by the legislature and the constraints on those powers in governing and empowering what Novak repeatedly called—a well-regulated society for “the people’s welfare.” Any regulating bureaucracy must balance conflicts between cities and irrigators; between water-rich and water-poor areas; and among water users in general as supplies have been diminished because of population growth and sometimes uncontrolled withdrawals from aquifers. However, legal and political barriers impede the desire to create new state mechanisms for addressing these critical issues.100 The longer the Texas Legislature postpones the stronger regulation of groundwater then the greater likelihood that implementation will be too late to overcome the sin of excessive withdrawals—uncontrolled and uncoordinated.
John Frank Hinrichs Jr.
Colby, Bonnie G. “Cap-and-Trade Challenges: A Tale of Three Markets.” Land Economics 76, no. 4 (November 2000): 638-658.
Collier, Kiah. “Lawyers Say Ruling Bad for Landowners.” Texas Tribune, 04 June 2016, accessed on February 4, 2020 at https://www.texastribune.org/2016/06/04/lawyers-say-ruling-bad- landowners/.
Dowell, Tiffany. “Texas Supreme Court: Accommodation Doctrine Applies to Groundwater,” AgriLife Extension Service, 8 June 2016, https://agrilife.org/texaglaw/2016/06/08/texas-supreme-court- accomodation- doctrine-applies-groundwater (27 January 2020).
Drummond, Dylan O. “Texas Groundwater Law in the Twenty-First Century: A Compendium of Historical Approaches, Current Problems, and Future Solutions Focusing on the High Plains Aquifer and the Panhandle.” Texas Tech Journal of Texas Administrative Law, vol. 4, no. 2 (2003): 173-225.
_____. “Texas groundwater rights and immunities: from East to Day and beyond.” Texas Water Journal, vol. 5, no. 1 (2014): 59-94.
Dunbar, Robert G. Forging New Rights in Western Waters. Lincoln and London: University of Nebraska Press, 1983.
Durenberger, David. “Groundwater Policy: A Need for Federal Participation.” Forum for Applied Research and Public Policy (Spring 1986): 77-86.
Frazier, Terry W. “Protecting Ecological Integrity Within the Balancing Function of Property Law.” Environmental Law 28 (Spring 1998): 53- 105.
Frederick, Kenneth D. “Water Marketing: Obstacles and Opportunities.” Forum for Applied Research and Public Policy 16, no.1 (Spring 2001): 54-62.
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Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation Dist., No. 2703-205 (District Court of Hudspeth County, 205th Judicial Dist. of Texas).
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1 Todd H. Votteler, “The Little Fish That Roared: The Endangered Species Act, State Groundwater Law, and Private Property Rights Collide Over the Texas Edwards Aquifer,” Environmental Law 28(Winter 1998): 855.
2 Diane King, “Endangered Species: Groundwater and Small Towns in the Texas Coastal Bend,” Agricultural History 76 (Spring 2002): 378.
3 Texas Water Development Board, Aquifers of Texas: Report 345 (Austin, 1995), 3.
4 Texas Water Development Board, A Texan’s Guide to Water and Water Rights Marketing (Austin, 2003), 5.
5 Ralph A. Wurbs, “Future Water Availability in the U.S.,” World and I 19, issue 7 (July 2003): 144-151. Also, Carole D. Baker with the Harris-Galveston Coastal Subsidence District pointed out that according to the 2002 State Water Plan, the inability of current water sources to meet demands for water during drought conditions will increase from 2.4 million acre-feet per year (AFY) in 2000 to an estimated 7.5 million AFY in 2050. See Gershon and Pitts, “6th Annual,” chapter 19, 1.
6 Morton J. Horowitz, The Transformation of American Law 1780-1860 (Cambridge, Mass.: Harvard University Press, 1977), 34.
7 See Act of May 19, 1949, 51st Leg., R.S., ch. 306, 1949 Tex. Gen. Laws 559. The statutory change to GCDs was made in 1995 when the Legislature revised the statutory authority. However, underground water conservation districts with different powers dated to 1925 (Acts 1925, 39th Leg., p. 87, ch. 25, 1925 Tex. Gen. Laws).
8 See Tex. Water Code §§ 36.101.
9 Texas Water Development Board, “Groundwater Conservation District Facts.” < https://www.twdb.texas.gov/groundwater/conservation_districts/facts.asp>.
10 Michael L. Williams, “Can Oil and Water Mix?: The Impact of Water Law on Oil, Gas, and Mineral Production,” Texas Bar Journal (October 2005): 817.
11 In a critical study of Congress and four western states—California, Colorado, Nevada, and Wyoming—Donald J. Pisani made fragmentation his major thesis as he explained four different and uncoordinated approaches for handling surface waters. See To Reclaim a Divided West: Water, Law, and Public Policy, 1848-1902 (Albuquerque: University of New Mexico Press, 1992).
12 Otis W. Templar, “The Handbook of Texas Online: Water Law,” <https://tshaonline.org/handbook/online/articles/gyw01>. (Visited 9 February 2020).
13 Kenneth Armbrister, speech to the State Bar of Texas Water Law Institute on February 11, 2005 in San Antonio, Texas. The people of Texas approved Section 39, Article VII, of the Constitution of 1866 which provided that “annexed territory previously belonging to Spain and Mexico, minerals in Spanish and Mexican grants passed to the surface owners. . . .” See “El Sal del Rey,” 60.
14 Ronald A. Kaiser, “Handbook of Texas Water Law: Problems and Needs,” Texas Water Resources Institute (College Station: Texas A&M University, n.d.): 11.
15 Texas Water Development Board, Aquifers of Texas, 1.
16 Ibid., 7.
17 Ibid., 11.
18 Ronald Kaiser and Frank F. Skillern, “Deep Trouble: Options for Managing the Hidden Threat of Aquifer Depletion in Texas,” Texas Tech Law Review 32 (2001): 260.
19 Texas Water Development Board, Aquifers of Texas, 15.
20 Votteler,“The Little Fish That Roared,” 879.
21 112 F.3d 789 (5th Cir. 1997).
22 Acts 1993, 73rd Leg., ch. 625, § 1.01, 1993 Tex. Gen. Laws 2350.
23 Michael A. Gershon and John R. Pitts, “6th Annual: The Changing Face of Water Rights in Texas,” (Austin: State Bar of Texas, 2005): chapter 18, 5. After the severe drought in 1996, the EAA implemented a pilot irrigation suspension program for the aquifer and paid a group of farmers not to irrigate for the 1997 cropping season. The program was designed to raise aquifer levels, increase springflow, and provide municipalities with relief in critical drought periods. See Keith O. Keplinger and Bruce A. McCarl, principal investigators, Technical Report No. 178-The 1997 Irrigation Suspension Program for the Edwards Aquifer: Evaluation and Alternatives (College Station, Tex.: Texas Water Resources Institute, 1998).
24 This rule was established in the landmark case of Houston & Texas Central Railroad Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904).
25 Kaiser, “Handbook of Texas Water Law,” 32.
26 Kaiser and Skillern, “Deep Trouble,” 263.
27 Eric Opiela, “Commentary: The Rule of Capture in Texas: An Outdated Principle Beyond Its Time,” University of Denver Water Law Review 6 (2002): 111.
28 Ibid., 106.
29 James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), 104.
30 Tex. Const. art. XVI, § 59(a).
31 William F. Mullican III and Suzanne Schwartz, eds., 100 Years of Rule of Capture: From East to Groundwater Management (Austin: Texas Water Development Board, 2004), 2.
32 Gershon and Pitts, “6th Annual,” chapter 18, 2.
33 Ibid., 9.
34 Sipriano v. Great Spring Waters of America, Inc., 1 S.W. 3d 75, 81-83. In this case Great Spring (an Ozarka company) began pumping 90,000 gallons of groundwater per day, seven days a week, from land near Sipriano’s. Soon after the pumping began, Sipriano’s wells were severely depleted.
35 Robert Glennon, “The Perils of Groundwater Pumping,” Issues in Science and Technology 19 (Fall 2002): 77-78.
36 Act of June 1, 1997, 75th Leg., R.S., ch. 1010, §§ 4.20-4.39, 1997 Tex. Gen. Laws 3610, 3642-3653.
37 Texas Water Development Board, Water for Texas: Summary of Regional Water Plans (Austin, 2001), 1.
38 Dylan O. Drummond, “Texas Groundwater Law in the Twenty-First Century: A Compendium of Historical Approaches, Current Problems, and Future Solutions Focusing on the High Plains Aquifer and the Panhandle,” Texas Tech Journal of Texas Administrative Law 4, no. 2 (2003): 223.
39 Act of May 27, 2001, 77th Leg., R.S., ch. 966, §§ 2.29-2.57, 2001 Tex. Gen. Laws 1880, 1896-1909.
40 Gershon and Pitts, “6th Annual,” chapter 18, 6-8.
41 Act of May 29, 2011, 82nd Leg., R.S., ch. 1207, 2011 Texas General Laws 3224 (codified at Texas Water Code §§ 36.002, 36.101).
42 Texas Water Code § 36.002(a).
43 Texas Water Development Board, A Texan’s Guide to Water, 8-9.
44 Deborah Clarke Trejo, “Groundwater Districts and Land Use Regulation,” Texas Water Law (Austin: CLE International, 2005), L-21.
45 Gershon and Pitts, “6th Annual,” chapter 18, 1.
46 Ibid., 9.
47 Texas Water Development Board, Water for Texas—2002 (Austin, 2002), 1.
48 See Tex. Water Code § 36.1072 (g).
49 King, “Endangered Species,” 377.
50 Texas Water Development Board, Water Conservation Best Management Practices Guide: Report 362 (Austin 2004), 1.
51 Williams, “Can Oil and Water Mix?”, 821. The capital costs for water projects included in the 2002 State Water Plan total more than $17 billion. Williams at p. 820. Kenneth Armbrister, Texas Senator from Victoria and a leader in the Senate on water bills, speaking to the State Bar of Texas Water Law Institute in February 2005 surprised most attendees by stating that the Texas Senate is even considering legislation to allow slot machines to help pay for the huge budget requisites for supplying Texas citizens with fresh water.
52 Donald Worster, Rivers of Empire: Water, Aquifer, and the Growth of the American West (New York and Oxford: Oxford University Press, 1992), 92-93.
53 See Wittfogel, Oriental Despotism, 27 quoted by Worster, Rivers of Empire, 39-40.
54 Coyote Lake Ranch, LLC v. The City of Lubbock, 498 S.W.3d 53 (Tex. 2016), 59 Tex.Sup.Ct.J. 967.
55 Collier, Kiah. "Lawyers Say Ruling Bad for Landowners." Texas Tribune. Archived from the original on June 4, 2016. Retrieved February 4, 2020 at <https://www.texastribune.org/2016/06/04lawyers-say-ruling-bad-landowners/>. See also, Tiffany Dowell, “Texas Supreme Court: Accommodation Doctrine Applies to Groundwater,” posted on June 8, 2016, accessed on January 27, 2020 at <https://agrilife.org/texasaglaw/2016/06/08/texas-supreme-court-accomodation-doctrine-applies-groundwater/>.
56 John Opie, Ogallala: Water for a Dry Land (Lincoln: University of Nebraska Press, 1993), 167.
57 Robert G. Dunbar, Forging New Rights in Western Water (Lincoln and London: University of Nebraska Press, 1983), 188.
58 Ibid., 236.
59 Wurbs, “Future Water Availability,” 144-151.
60 Kaiser, “Handbook of Texas Water Law,” 41.
61 Eric T. Freyfogle, “Water Rights and the Common Wealth,” Environmental Law 26 (Spring 1996): 46-47.
62 Guitar Holding Co., L.P. v. Hudspeth County Undergrowth Water Conservation District, No. 2703-205 (Consolidated) (District Court of Hudspeth County, 205th Judicial Dist. of Texas).
63 Guitar Holding Company, L.P. v. Hudspeth County Underground Water Conservation District No. 1, et al., 263 S.W.3d 910, 912 (Tex. 2008).
64 Ibid., 916.
65 Ibid., 917. See also, for a thorough examination of this case and other cases, the article by Dylan O. Drummond, “Texas groundwater rights and immunities: from East to Day and Beyond,” Texas Water Journal, 5, no. 1 (2014): 59-94.
66 Lyndon B. Johnson School of Public Affairs, Policy Research Project on Water for the Environment, Squeezing a Dry Sponge: Water Planning in Texas (Austin: LBJ School, 1994), 126.
67 Votteler, “The Little Fish That Roared,” 846.
68 Char Miller, ed., Fluid Arguments: Five Centuries of Western Water Conflict (Tucson: University of Arizona Press, 2001), 232-233.
69 Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water (New York: Penguin Books, 1986), 457.
70 Benjamin H. Grumbles, “Better Watershed Management,” Issues in Science & Technology 21, issue 1 (Fall 2004):14-16.
71 David Durenberger, “Groundwater Policy: A Need for Federal Participation,” Forum for Applied Research and Public Policy (Spring 1986): 77-86.
72 Kenneth D. Frederick, “Water Marketing: Obstacles and Opportunities,” Forum for Applied Research and Public Policy 16, no. 1 (Spring 2001): 54.
73 Zach Willey, “Behind Schedule and Over Budget: The Case of Markets, Water and Environment,” Harvard Journal of Law and Public Policy 15, issue 2 (Spring 1992): 391-426.
74 Char Miller, On the Border: An Environmental History of San Antonio (San Antonio: Trinity University Press, 2005), 242.
75 Bonnie G. Colby, “Cap-and-Trade Challenges: A Tale of Three Markets,” Land Economics 76, no. 4 (November 2000): 639.
76 Opiela, “Commentary: The Rule of Capture in Texas,” 114-115.
77 Freyfogle, “Water Rights and the Common Wealth,” 47.
78 Eric Opiela, “Commentary: The Rule of Capture in Texas,” 107.
79 Kaiser and Skillern, “Deep Trouble,” 252. Also, for the statutory authority, see Tex. Water Code Ann. § 36.0015 (Vernon 2003).
80 Gershon and Pitts, “6th Annual,” chapter 18, 13.
81 Eric Opiela, “Commentary: The Rule of Capture,” 109.
82 San Antonio also contracted with Alcoa for as much as 90,000 acre-feet per year. This water would come from the Simsboro Aquifer underlying Alcoa’s lignite operation northeast of Austin. One of the reasons for S.B. 2 in 2001 was to give a GCD the powers to limit the exportation of groundwater outside the district by charging higher fees and limiting the permits. Information found in Williams, “Can Oil and Water Mix?” at p. 820.
83 The Edwards Aquifer Authority and The State of Texas v. Burrell Day and Joel
McDaniel, 369 S.W.3d 814 (Tex. 2012), 55 Tex.Sup.Ct.J.343.
84 Ibid., 830.
85 Ibid., 823, 826.
86 Ibid., 831-832 (quoting Elliff v. Texon Drilling Co, 146 Tex. 575, 580, 210 S.W.2d 558, 561 (1948).
87 Ibid., 838.
88 The Edwards Aquifer Authority v. Bragg, 421 S.W.3d 118 (Tex. App.-San Antonio 2013). The Court cited to the U. S. Supreme Court case entitled Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d631 (1978); Ibid. for Bragg at138-145.
89 See Bragg, 124, 131, 147, and 152.
90 Nassim Nicholas Taleb. Skin in the Game: Hidden Asymmetries in Daily Life (New York: Random House, 2018), 32.
91 Remi Nadeau, “The Water War,” American Heritage (December 1961): 31-32.
92 Char Miller, ed., “Fluid Arguments,” 334.
93 Oliver W. Holmes, The Common Law 5 (M. Howe ed., Harvard University Press, 1963), quoted in Morton J. Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy (New York and Oxford: Oxford University Press, 1992), 129.
95 Ibid., 36.
96 Although beyond the scope of this short essay, statewide regulation should facilitate the negotiation of interstate compacts as a legal alternative to the unpredictable, costly, and drawn-out courtroom decisions-- often going all the way to the United States Supreme Court for a final resolution. See James Earl Sherow, Watering the Valley: Development Along the High Plains Arkansas River, 1870-1950 (Lawrence: University of Kansas Press, 2003), 168-169.
97 Votteler, “The Little Fish That Roared,” 875-876
98 Gifford Pinchot, Breaking New Ground, reprint (New York: Island Press, 1998), 321, quoted in Donald J. Pisani, “To Reclaim a Divided West, 335. Pinchot was referring to every separate government agency having something to do with natural resources.
99 See interesting historical context beginning with Roman laws as provided by Drummond in Texas Water Journal at 61-70, infra.
100 Lyndon B. Johnson School of Public Affairs, “Squeezing a Dry Sponge,” 3.
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