Senator Robert "Bob" Deuell, M.D.
The Texas State Senate
District 2

For Immediate Release
January 14, 2004

***CAPITOL UPDATE***

INFORMATION ON GROUNDWATER

(AUSTIN) - Recently, I had the honor of being appointed to the Senate Select Committee on Water Policy by Lt. Governor David Dewhurst.  This committee will be looking at a broad range of water policy in anticipation of the next regular session of the legislature. 

Among the select committee's specific charges as they relate to the management and policy concerning ground and surface water are: the role of federal, state, regional, and local governments in setting consistent water policies; the authority of the Texas Commission on Environmental Quality over water contracts; the role of the Edwards Aquifer Authority; the role of groundwater conservation districts; the regional water planning process; the conjunctive use of both ground and surface water resources; the rule of capture; historic use standards; water infrastructure and financing; interbasin transfers; junior water rights; conservation; water quality standards; drought preparedness and water marketing.

In the next few weeks, I will outline some of the state's water laws and regulations in my Capitol Update.  This article focuses on groundwater, and is taken from Water Resources Education website.  To access more information, please feel free to visit their site at texaswater.tamu.edu/index.html.

Groundwater

Water found below the earth's surface in the crevices of soil and rocks is called percolating water, or more commonly groundwater. Texas groundwater law is judge-made law, derived from the English common law rule of "absolute ownership." Groundwater belongs to the owners of the land above it and may be used or sold as private property. Texas courts have adopted, and the legislature has not modified, the common law rule that a landowner has a right to take for use or sale all the water that he can capture from below his land.

Because of the seemingly absolute nature of this right, Texas water law has often been called the "law of the biggest pump." Texas courts have consistently ruled that a landowner has a right to pump all the water that he can from beneath his land regardless of the effect on wells of adjacent owners. The legal presumption in Texas is that all sources of groundwater are percolating waters as opposed to subterranean rivers. Consequently, the landowner is presumed to own underground water until it is conclusively shown that the the source of supply is a subterranean river.

The state of the law with respect to ownership of subterranean rivers is not settled in Texas. Both stream underflow and subterranean rivers have been expressly excluded from the definition of underground water in Section 52.001 of the Texas Water Code.

The practical effect of Texas groundwater law is that one landowner can dry up an adjoining landowner's well and the landowner with the dry well is without a legal remedy. Texas courts have refused to adopt the American rule of "reasonable use" with respect to groundwater.

Exceptions to Absolute Owner Rule. There are five situations in which a Texas landowner can take legal action for interference with his groundwater rights:

If an adjoining neighbor trespasses on the land to remove water either by drilling a well directly on the landowner's property or by drilling a "slant" well on adjoining property so that it crosses the subterranean property line, the injured landowner can sue for trespass.

There is malicious or wanton conduct in pumping water for the sole purpose of injuring an adjoining landowner.

Landowners waste artesian well water by allowing it to run off their land or to percolate back into the water table.

There is contamination of water in a landowner's well. No one is allowed to unlawfully pollute groundwater.

Land subsidence and surface injury result from negligent overpumping from adjoining lands.

Limited Regulation of Groundwater. The Texas Legislature acknowledged private ownership of percolating groundwater in legislation passed in 1949 and again in 1985, when it authorized the establishment of underground water conservation districts. These districts generally have the authority to promulgate rules for conserving, protecting, recharging, and preventing waste of underground water.

Please contact my office to discuss this, or any other issue.

To contact Sen. Deuell about the legislative process, contact the Capitol Office at (512) 463-0556 or mail to Sen. Bob Deuell, Texas Senate, P.O. Box 12068, Austin, TX 78711.  The website for the Texas Senate is www.Senate.state.tx.us.  The e-mail address for Sen. Deuell is: bob.deuell@senate.state.tx.us.

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