Texas lawmakers debate water property rights

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Associated Press

Posted on April 5, 2011 at 11:03 PM

Updated Tuesday, Apr 5 at 11:03 PM

AUSTIN, Texas (AP) — A state custom that gives landowners the rights to groundwater beneath their land still sparks controversy more than a century after its inception.

State lawmakers on Tuesday debated how to clarify a statute known as the rule of capture that lets landowners pump water to use as they choose.

Rep. Allan Ritter, R-Nederland, authored the bill that says Texans have the right to drill a well and pump water, but conservation districts can set limits on how much water is pumped. It is companion legislation to a bill that cleared the Senate floor with widespread support last month.

Precedent on groundwater rights is spotty at best, spread across court rulings, statutes and muddled interpretations. Landowners, groundwater districts and attorneys all agree it lacks a cohesive element needed to be effective.

The controversy Tuesday in a House committee hearing centered on the term "vested" in reference to a landowner's interest. Some lawyers were concerned the word will create chaos and warned it could pave the way for a nasty influx of litigation.

Deborah Trejo, an environmental attorney, said the language could make groundwater districts susceptible to lawsuits from landowners demanding to pump more water. She said including the word "vested" would effectively give every landowner standing in court, unfairly leaving groundwater districts to face a barrage of lawsuits.

"You're mandating that groundwater districts regulate, but then giving everyone in the state who owns land standing to sue," she said. "How does a district with limited fiscal resources sustain itself against possibly unlimited number of suits?"

Rep. Trey Martinez-Fischer, D-San Antonio, also expressed concern that the word "vested" was too strong.

For landowners whose property is often passed down through the generations, protection of their groundwater ties directly to the worth of their land. They fear that their rights could be stripped, so they want a concrete guarantee that their ownership won't be challenged by the state or other citizens.

"Property is the foundation and asset of every ranching family there is," said Joe Parker, president of the Texas and Southwestern Cattle Raisers Association. "For over 100 years Texans have believed the groundwater beneath their land is their own. We must strike a balance or all landowners will eventually pay."

Opponents also said the fear of lawsuits could keep groundwater districts from enforcing regulations.

"If this bill invites lawsuits into our regulations, we're going to be facing the cost of suits, damages and we will back off and have no regulation," said Ron Neighbors, general manager of the Harris-Galveston Subsidence District. "Giving everyone the right to have a well would totally reduce our ability to regulate."

As Texas continues to grow, so does the demand for water. Billionaire T. Boone Pickens wants court approval to pump as much water as he wants from the Ogallala Aquifer under land he owns. The aquifer does not replenish itself like many other aquifers, so once it's gone, there is no getting it back.

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