6 Legal and Administrative Systems

Hardberger (2019) summarizes the development of Texas water law as it pertains to groundwater in general, and to the Edwards Aquifer in particular. In Texas, groundwater and surface water are managed by separate doctrines. Surface water is state-owned and governed by the doctrine of prior appropriation (i.e., water rights are determined by priority of beneficial use). Groundwater law has been evolving and is based on a series of court cases and legislative actions. In Texas, like soil, groundwater is the property of the surface landowner. The 1904 East case confirmed the absolute ownership of water or the “rule of capture” for beneficial use, limited only by the exception that malicious use and, later, subsidence of adjoining properties, were not permitted. The Texas Supreme Court has indicated that rule-of-capture might not be an appropriate doctrine but left the doctrine in place. Since the 1990s, there have been three major changes:

• Groundwater Conservation Districts (GCDs) were designated as the preferred method for groundwater management, emphasizing that local control and protection of endangered species in the Edwards Aquifer springs necessitated pumping restrictions. GCDs are required to develop and implement effective management plans for the groundwater resources in their designated areas. In addition, the state established Groundwater Management Areas (GMAs) (Texas Water Development Board) to provide for conservation, protection, recharging, preventing waste of groundwater and “groundwater reservoirs” (i.e., aquifers) as well as controlling subsidence caused by groundwater withdrawal. Many GCDs are defined by county boundaries. GMAs incorporate a number of adjoining GCDs.
• Recent court decisions ruled that landowners have a vested property right in the groundwater below their land prior to its capture (the Day case) and that restricting pumping of groundwater was a “taking” that required compensation of the land owner (the Bragg case). Legal constraints will be an important factor in determining the future development of the Edwards Aquifer and associated water resources.
• Habitat conservation plans have been developed to protect ecosystems at Comal, San Marcos, and Barton springs (BSEACD, 2018). Payne and others (2019) summarize the Habitat Conservation Plan developed for the San Antonio Segment in this video.