Legal Experts: Texas Water Rules Are A Mess

Texas is facing major legal uncertainty around groundwater rights.

It has long been understood that water scarcity plagues the drought-prone Lonestar State, as Water Online reported in a piece on the "looming water crisis"in Texas two years ago. Complicating the issue, it remains entirely unclear how the government should apply rules around who has access to Texan groundwater.

And matters just got worse. A state appeals court ruling late last month made the regulatory landscape even cloudier, signaling that "only years of expensive legal battles will provide clarity," The Texas Tribune reported.

The case in question is Edwards Aquifer Authority v. Glenn and JoLynn Bragg. The court ruled that the Edwards Aquifer Authority "took property from two pecan grove owners by denying one water permit and granting another for far less water than requested. Now the authority must compensate them," The Amarillo Glove News reported, noting that the aquifer plans to appeal the decision.

This ruling is the first state appeals court decision saying groundwater regulations violate property rights under the Texas constitution. The upshot is "it fuels an already fiery debate over whether groundwater can be protected alongside private property rights," The Tribune reported.

Clarity is not expected anytime soon. The legal framework is expected to be hammered out over the long-haul, in the courts, rather than through any new laws, according to The Tribune.

"This whole issue will ultimately be resolved by litigation and not legislation," said Andrew Sansom, executive director of the Meadows Center for Water and the Environment at Texas State University. "A lot of it will be between private landowners, both of whom have been told by the state that the water is theirs."

That is not an ideal scenario for anyone. According to legal experts, the problem boils down to this: There's no way to know which actions are in bounds for a water district.

“It’s very difficult to be able to tell what a water district can and cannot do,” said Lynn Tate, an Amarillo lawyer with experience in water law and president of the board of the High Plains Underground Water Conservation District, in the Amarillo Globe News. “It’s quite a balancing job to do. I guess we try and then get our paper graded by the court.”

The backdrop is that water scarcity is looming large in Texas. One state legislator drilled that home in a public forum last week, according to The Magnolia Potpourri, by describing potential economic fallout due to the state's failure to resolve the shortage.

If the state does not shift its water strategy soon, it will “be short a tremendous amount of water and economic impact estimated at close to $116 billion a year," State Rep. Cecil Bell Jr. said.