As those who lived through the drought of record in the 1950s can attest, there are three certainties in Texas: Death, Taxes, and Drought. When rain is scarce, reservoirs evaporate, and available groundwater becomes an imperative. It is also clear that the present rate of growth in urban areas cannot be sustained with surface water. With unlimited finances, the cities can afford expensive projects to transport groundwater for long distances. Agriculture and small towns will not be able to compete when water is sold to the highest bidder. Although desalination of both groundwater and seawater are viable, their processes are much more expensive than producing potable groundwater. The cheapest groundwater will be first on the market to supply the demand. The target will be on shallow freshwater until it is exhausted. Mark Twain was right: “Whiskey is for drinking; water is for fighting.”
Unlike other Western states, Texas does not allocate groundwater on a state level. Texas recognizes unlimited private ownership of groundwater through its “Right of Capture.” Under this court-imposed rule, any property owner can produce an unlimited amount of groundwater for any useful purposes, regardless of the effect on neighboring wells or the aquifer. Recognizing the detrimental effects of this rule, the legislature has authorized local groundwater conservation districts (GCDs) with limited authority to protect other property owners and the aquifers from excessive pumping. Creation of a GCD requires action by the legislature or the TCEQ and approval of the voters. While 154 counties are now included in a GCD, 100 are still without this basic protection.
Regulatory authority is granted to a GCD under Chapter 36, Water Code. The district can adopt rules to regulate the spacing and production of wells through a permit process. Protection is provided to historic users, domestic and livestock wells, and public water supplies. New permits can be limited to a maximum production per surface acre owned or controlled. This production limit can protect the current users and the future of the aquifers from overproduction for transfer from the local area.
All GCDs issue permits for new groundwater wells. However, some have lagged behind and failed to implement reasonable production limits. This leaves their current users and aquifers exposed to large export projects and damaging overpumping. While the expense of pipelines and pumping stations may still deter some large transfer projects, the proposed location of data centers, power generators, and other large water users in rural areas presents a new challenge. An evaporative cooling system for a data center can use as much water daily as a small city. While closed-loop cooling systems are available, they are more expensive. There are no state restrictions on these systems; therefore, local entities need to be involved.
Counties have no groundwater regulatory authority and very little land use authority. However, the economic future of many counties depends on preservation of this resource. Commissioners Courts can be a positive factor in these policies. If the county is not currently located in a GCD, the Commissioners Court can support its creation or annexation with an adjacent district. If there is a GCD without protective production rules, the Commissioners Court can urge the GCD to act promptly to protect the current users and the aquifer. If a large water-using project is proposed, the Commissioners Court can require water-conserving technology as a condition of any tax abatement agreement. Finally, the Commissioners Courts can urge their legislators to adopt statutes to enhance local control of this resource and statewide incentives for the conservation of fresh groundwater and greater utilization of brackish groundwater.
