The one thing Texas won't do to save its water supply

This article is part of Running Out, an occasional series about Texas' water crisis. Read more stories about the threats facing Texas' water supply here.
LUBBOCK — Every winter, after the sea of cotton has been harvested in the South Plains and the ground looks barren, technicians with the High Plains Underground Water Conservation District check the water levels in nearly 75,000 wells across 16 counties.
For years, their measurements have shown what farmers and water conservationists fear most — the Ogallala Aquifer, an underground water source that's the lifeblood of the South Plains agriculture industry, is running dry.
That's because of a century-old law called the rule of capture.
The rule is simple: If you own the land above an aquifer in Texas, the water underneath is yours. You can use as much as you want, as long as it's not wasted or taken maliciously. The same applies to your neighbor. If they happen to use more water than you, then that's just bad luck.
To put it another way, landowners can mostly pump as much water as they choose without facing liability to surrounding landowners whose wells might be depleted as a result.
Following the Dust Bowl — and to stave off catastrophe — state lawmakers created groundwater conservation districts in 1949 to protect what water is left. But their power to restrict landowners is limited.
'The mission is to save as much water possible for as long as possible, with as little impact on private property rights as possible,' said Jason Coleman, manager for the High Plains Underground Water Conservation District. 'How do you do that? It's a difficult task.'
Rapid population growth, climate change, and aging water infrastructure all threaten the state's water supply. Texas does not have enough water to meet demand if the state is stricken with a historic drought, according to the Texas Water Development Board, the state agency that manages Texas' water supply.
Lawmakers want to invest in every corner to save the state's water. This week, they reached a historic $20 billion deal on water projects.
[Texas is running out of water. Here's why and what state leaders plan to do about it.]
But no one wants to touch the rule of capture. In a state known for rugged individualism, politically speaking, reforming the law is tantamount to stripping away freedoms.
'There probably are opportunities to vest groundwater districts with additional authority,' said Amy Hardberger, director for the Texas Tech University Center for Water Law and Policy. 'I don't think the political climate is going to do that.'
State Sen. Charles Perry, a Lubbock Republican, and Rep. Cody Harris, a Palestine Republican, led the effort on water in Austin this year. Neither responded to requests for comment.
Carlos Rubinstein, a water expert with consulting firm RSAH2O and a former chairman of the water development board, said the rule has been relied upon so long that it would be near impossible to undo the law.
'I think it's better to spend time working within the rules,' Rubinstein said. 'And respect the rule of capture, yet also recognize that, in and of itself, it causes problems.'
Even though groundwater districts were created to regulate groundwater, the law effectively stops them from doing so, or they risk major lawsuits. The state water plan, which spells out how the state's water is to be used, acknowledges the shortfall. Groundwater availability is expected to decline by 25% by 2070, mostly due to reduced supply in the Ogallala and Edwards-Trinity aquifers. Together, the aquifers stretch across West Texas and up through the Panhandle.
By itself, the Ogallala has an estimated three trillion gallons of water. Though the overwhelming majority in Texas is used by farmers. It's expected to face a 50% decline by 2070.
Groundwater is 54% of the state's total water supply and is the state's most vulnerable natural resource. It's created by rainfall and other precipitation, and seeps into the ground. Like surface water, groundwater is heavily affected by ongoing droughts and prolonged heat waves. However, the state has more say in regulating surface water than it does groundwater. Surface water laws have provisions that cut supply to newer users in a drought and prohibit transferring surface water outside of basins.
Historically, groundwater has been used by agriculture in the High Plains. However, as surface water evaporates at a quicker clip, cities and businesses are increasingly interested in tapping the underground resource. As Texas' population continues to grow and surface water declines, groundwater will be the prize in future fights for water.
In many ways, the damage is done in the High Plains, a region that spans from the top of the Panhandle down past Lubbock. The Ogallala Aquifer runs beneath the region, and it's faced depletion to the point of no return, according to experts. Simply put: The Ogallala is not refilling to keep up with demand.
'It's a creeping disaster,' said Robert Mace, executive director of the Meadows Center for Water and the Environment. 'It isn't like you wake up tomorrow and nobody can pump anymore. It's just happening slowly, every year.'
The High Plains Water District was the first groundwater district created in Texas.
Over a protracted multi-year fight, the Legislature created these new local government bodies in 1949, with voter approval, enshrining the new stewards of groundwater into the state Constitution.
If the lawmakers hoped to embolden local officials to manage the troves of water under the soil, they failed. There are areas with groundwater that don't have conservation districts. Each groundwater districts has different powers. In practice, most water districts permit wells and make decisions on spacing and location to meet the needs of the property owner.
The one thing all groundwater districts have in common: They stop short of telling landowners they can't pump water.
In the seven decades since groundwater districts were created, a series of lawsuits have effectively strangled groundwater districts. Even as water levels decline from use and drought, districts still get regular requests for new wells. They won't say no out of fear of litigation.
'You have a host of different decisions to make as it pertains to management of groundwater,' Coleman said. 'That list has grown over the years.'
The possibility of lawsuits makes groundwater districts hesitant to regulate usage or put limitations on new well permits. Groundwater districts have to defend themselves in lawsuits, and most lack the resources to do so.
'The law works against us in that way,' Hardberger, with Texas Tech University, said. 'It means one large tool in our toolbox, regulation, is limited.'
The most recent example is a lawsuit between the Braggs Farm and the Edwards Aquifer Authority. The farm requested permits for two pecan orchards in Medina County, outside San Antonio. The authority granted only one and limited how much water could be used based on state law.
It wasn't an arbitrary decision. The authority said it followed the statute set by the Legislature to determine the permit.
'That's all they were guaranteed,' said Gregory Ellis, the first general manager of the authority, referring to the water available to the farm.
The Braggs family filed a takings lawsuit against the authority. This kind of claim can be filed when any level of government — including groundwater districts — takes private property for public use without paying for the owner's losses.
Braggs won. It is the only successful water-related takings claim in Texas, and it made groundwater laws murkier. It cost the authority $4.5 million.
'I think it should have been paid by the state Legislature,' Ellis said. 'They're the ones who designed that permitting system. But that didn't happen.'
An appeals court upheld the ruling in 2013, and the Texas Supreme Court denied petitions to consider appeals. However, the state's supreme court has previously suggested the Legislature could enhance the powers of the groundwater districts and regulate groundwater like surface water, just as many other states have done.
While the laws are complicated, Ellis said the fundamental rule of capture has benefits. It has saved Texas' legal system from a flurry of lawsuits between well owners.
'If they had said 'Yes, you can sue your neighbor for damaging your well,' where does it stop?' Ellis asked. 'Everybody sues everybody.'
Coleman, the High Plains district's manager, said some people want groundwater districts to have more power, while others think they have too much. Well owners want restrictions for others, but not on them, he said.
'You're charged as a district with trying to apply things uniformly and fairly,' Coleman said.
Two tractors were dropping seeds around Walt Hagood's farm as he turned on his irrigation system for the first time this year. He didn't plan on using much water. It's too precious.
The cotton farm stretches across 2,350 acres on the outskirts of Wolfforth, a town 12 miles southwest of Lubbock. Hagood irrigates about 80 acres of land, and prays that rain takes care of the rest.
'We used to have a lot of irrigated land with adequate water to make a crop,' Hagood said. 'We don't have that anymore.'
The High Plains is home to cotton and cattle, multi-billion-dollar agricultural industries. The success is in large part due to the Ogallala. Since its discovery, the aquifer has helped farms around the region spring up through irrigation, a way for farmers to water their crops instead of waiting for rain that may not come. But as water in the aquifer declines, there are growing concerns that there won't be enough water to support agriculture in the future.
At the peak of irrigation development, more than 8.5 million acres were irrigated in Texas. About 65% of that was in the High Plains. In the decades since the irrigation boom, High Plains farmers have resorted to methods that might save water and keep their livelihoods afloat. They've changed their irrigation systems so water is used more efficiently. They grow cover crops so their soil is more likely to soak up rainwater. Some use apps to see where water is needed so it's not wasted.
Farmers who have not changed their irrigation systems might not have a choice in the near future. It can take a week to pump an inch of water in some areas from the aquifer because of how little water is left. As conditions change underground, they are forced to drill deeper for water. That causes additional problems. Calcium can build up, and the water is of poorer quality. And when the water is used to spray crops through a pivot irrigation system, it's more of a humidifier as water quickly evaporates in the heat.
According to the groundwater district's most recent management plan, 2 million acres in the district use groundwater for irrigation. About 95% of water from the Ogallala is used for irrigated agriculture. The plan states that the irrigated farms 'afford economic stability to the area and support a number of other industries.'
The state water plan shows groundwater supply is expected to decline, and drought won't be the only factor causing a shortage. Demand for municipal use outweighs irrigation use, reflecting the state's future growth. In Region O, which is the South Plains, water for irrigation declines by 2070 while demand for municipal use rises because of population growth in the region.
Coleman, with the High Plains groundwater district, often thinks about how the aquifer will hold up with future growth. There are some factors at play with water planning that are nearly impossible to predict and account for, Coleman said. Declining surface water could make groundwater a source for municipalities that didn't depend on it before. Regions known for having big, open patches of land, like the High Plains, could be attractive to incoming businesses. People could move to the country and want to drill a well, with no understanding of water availability.
The state will continue to grow, Coleman said, and all the incoming businesses and industries will undoubtedly need water.
'We could say 'Well, it's no one's fault. We didn't know that factory would need 20,000 acre-feet of water a year,' Coleman said. 'It's not happening right now, but what's around the corner?'
Coleman said this puts agriculture in a tenuous position. The region is full of small towns that depend on agriculture and have supporting businesses, like cotton gins, equipment and feed stores, and pesticide and fertilizer sprayers. This puts pressure on the High Plains water district, along with the two regional water planning groups in the region, to keep agriculture alive.
'Districts are not trying to reduce pumping down to a sustainable level,' said Mace with the Meadows Foundation. 'And I don't fault them for that, because doing that is economic devastation in a region with farmers.'
Hagood, the cotton farmer, doesn't think reforming groundwater rights is the way to solve it. What's done is done, he said.
'Our U.S. Constitution protects our private property rights, and that's what this is all about,' Hagood said. 'Any time we have a regulation and people are given more authority, it doesn't work out right for everybody.'
The state water plan recommends irrigation conservation as a strategy. It's also the least costly water management method.
But that strategy is fraught. Farmers need to irrigate in times of drought, and telling them to stop can draw criticism.
In Eastern New Mexico, the Ogallala Land and Water Conservancy, a nonprofit organization, has been retiring irrigation wells. Landowners keep their water rights, and the organization pays them to stop irrigating their farms. Landowners get paid every year as part of the voluntary agreement, and they can end it at any point.
Ladona Clayton, executive director of the organization, said they have been criticized, with their efforts being called a 'war' and 'land grab.' They also get pushback on why the responsibility falls on farmers. She said it's because of how much water is used for irrigation. They have to be aggressive in their approach, she said. The aquifer supplies water to the Cannon Air Force Base.
'We don't want them to stop agricultural production,' Clayton said. 'But for me to say it will be the same level that irrigation can support would be untrue.'
There is another possible lifeline that people in the High Plains are eyeing as a solution: the Dockum Aquifer. It's a minor aquifer that underlies part of the Ogallala, so it would be accessible to farmers and ranchers in the region. The High Plains Water District also oversees this aquifer.
If it seems too good to be true — that the most irrigated part of Texas would just so happen to have another abundant supply of water flowing underneath — it's because there's a catch. The Dockum is full of extremely salty brackish water. Some counties can use the water for irrigation and drinking water without treatment, but it's unusable in others. According to the groundwater district, a test well in Lubbock County pulled up water that was as salty as seawater.
Rubinstein, the former water development board chairman, said there are pockets of brackish groundwater in Texas that haven't been tapped yet. It would be enough to meet the needs on the horizon, but it would also be very expensive to obtain and use. A landowner would have to go deeper to get it, then pump the water over a longer distance.
'That costs money, and then you have to treat it on top of that,' Rubinstein said. 'But, it is water.'
Landowners have expressed interest in using desalination, a treatment method to lower dissolved salt levels. Desalination of produced and brackish water is one of the ideas that was being floated around at the Legislature this year, along with building a pipeline to move water across the state. Hagood, the farmer, is skeptical. He thinks whatever water they move could get used up before it makes it all the way to West Texas.
There is always brackish groundwater. Another aquifer brings the chance of history repeating — if the Dockum aquifer is treated so its water is usable, will people drain it, too?
Hagood said there would have to be limits.
Disclosure: Edwards Aquifer Authority and Texas Tech University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
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