Under the legislation, groundwater conservation districts could still require a landowner to get a permit and limit the amount of groundwater that can be produced
Note: This press release from Sen. Fraser was circulated to media January 12. For more information, contact Janice McCoy in the senator's office, 512.463.0124. Needless to say, groundwater management is a hot potato issue all across the state. The intent of Sen. Fraser's bill is not fully explained. That's not unusual in the early stages of any proposed legislation. What is clear is the message that an honest debate is needed anew over the rights and proper management of our groundwater resources.
State Senator Troy Fraser, R-Horseshoe Bay, authored legislation on Wednesday, January 12 which would clarify groundwater ownership. Senate Bill 332 would clearly state that landowners have a vested ownership interest in the groundwater beneath their property.The legislation has been filed because some entities are challenging the Rule of Capture in court. The Rule of Capture was established in 1904 by the Texas Supreme Court. The court ruled that groundwater was the private property of a landowner and that a landowner could be held liable for harming a neighbor's well by exercising their right to capture the groundwater.
"For over 100 years, landowners have believed that the Rule of Capture gives them a vested private property right in the groundwater beneath their land," said Fraser. "And, that the property right gives the ability to drill a well and produce groundwater for their use."
The legislation is intended to work in conjunction with local groundwater conservation district regulation. Under the legislation, groundwater conservation districts could still require a landowner to get a permit and limit the amount of groundwater that can be produced. However, the legislation would prevent a district from "taking" a landowner's right to capture the water beneath the land.
"Landowners recognize that locally elected groundwater conservation districts play an important role in helping manage water to ensure it is available for future generations," said Fraser. "But there is a big difference between managing how much water is pumped and denying property owners the right to access the water beneath their land."
A vested ownership interest is a property right that a landowner can legally protect. The right to produce groundwater is a property right that is exclusively the landowner’s. No one else can come onto private property, drill a well, and start pumping groundwater. If someone were to attempt it, the landowner could legally stop them.
"As Chairman of the Senate Committee on Natural Resources, I believe the issue of groundwater rights needs to be debated by the Legislature." Fraser said. "The management of this important asset is key to developing the State Water Plan and ensuring that water is available for the future."
Senator Fraser represents a 21-county region in the geographic center of the state. He is the Chairman of the Senate Committee on Natural Resources. He also sits on the following standing Senate Committees: Business and Commerce, Nominations, State Affairs, and International Relations and Trade.
19 comments:
The point that always comes up when debating the Rule of Capture is when does your right to pump water out from under your property negatively affect the right of your neighbor to ensure that his water rights are not infringed upon.
If your water was fenced off, this might make sense.
In the meantime, your neighbor can pump you (or dam you) into oblivion.
I suspect that the word "not" was omitted from the following paragraph in the press release:
The legislation has been filed because some entities are challenging the Rule of Capture in court. The Rule of Capture was established in 1904 by the Texas Supreme Court. The court ruled that groundwater was the private property of a landowner and that a landowner could [NOT] be held liable for harming a neighbor's well by exercising their right to capture the groundwater.
This article needs some cleanup.
First of all, the 1904 Houston & T.C. Ry v. East decision held that a landowner was NOT liable for the fact that a neighboring well elsewhere ran dry. This was re-affirmed in the Sipriano v Great Springs Water of America (Texas 1999) case. However, one cannot a) waste the water, b) maliciously pump water for the purpose of causing harm, c) pump negligently to result in land subsidence of neighboring property, or d) use slant drilling to take water from beneath a neighboring landowner's property.
Second of all, the Rule of Capture does not exist in areas with a groundwater district.
Third, agencies and political subdivisions of the state such as Edwards Aquifer Authority, TCEQ, the Hays Trinity Groundwater Conservation District (the former board), and even Hays County (the former commissioners) have been actively trying to deny groundwater rights in the entirety.
As noted by Fraser: there is a big difference between managing how much water is pumped vs denying property owners the right to access the water beneath their land.
As a point of clarification, the Rule of Capture is in effect throughout the State, it is constrained by the permitting authority of the Groundwater Districts.
That said, the Texas Supreme Court has indicated that the Rule of Capture is fundamentally flawed - for today's applications - and has only been reluctant to overturn the rule in deference to the Legislature. The Court has also indicated that its patience is waning, but has not yet chosen to intervene.
In choosing a course of action, we would be well-served to set aside the historical interests and rights in favor of present and future needs, both economic and social. In addition to debating the appropriate basis for ascertaining property rights and the point at which an interest vests, we must find economies and efficiencies that will enable current water supplies to support greater demand.
Whether determining whether, or to what extent, to permit, the impact of the action - local and downstream, present and future - should determine the outcome. To act otherwise is to suggest that decades- or centuries-old policy and politics is more relevant than current social and economic requirements.
All geographic areas are supported by a combination of depletable and replenishable resources. Land can only be depleted, water is – unfortunately – both. Over-develop the land and water supplies will relocate to other, less developed, areas. We must learn to develop within replenishable resource constraints. We must learn to ascertain regional development capacities that reserve sufficient land and water to ensure healthy ecosystems without which no long-term development can be sustained. With that information, we can address the remaining issues:
1) What is the full cost of development?
2) Over what period will that cost be born?
3) Is there any period over which the cost will be offset in like manner (ex: an increase in water demand at one location is offset by a decrease in downstream demand)?
4) Who will bear that cost?
Historically, the answers have been to defer development costs, both over time and to other parties. Today, we must decide if that course continues to be tolerable, much less acceptable. Ultimately, we must conserve. Until then, we can only regulate and litigate – increasing the overall cost of development for all parties and all times.
"The Rule of Capture was established in 1904 by the Texas Supreme Court."
The "1904" part tells us everything we need to know about this antiquated rule.
@Aqueous Humor: "The point that always comes up when debating the Rule of Capture is when does your right to pump water out from under your property negatively affect the right of your neighbor to ensure that his water rights are not infringed upon."
Your definition of rights needs to be clarified. Both have the right to try to pump - neither of them has a "right" for water to exist in their respective wells.
The usual suspects in the water fights have pushed for legislative change to deny wells (including residential wells) to others while grandfathering themselves in. Real class acts.
Roger Grace said: "In choosing a course of action, we would be well-served to set aside the historical interests and rights in favor of present and future needs, both economic and social. In addition to debating the appropriate basis for ascertaining property rights and the point at which an interest vests, we must find economies and efficiencies that will enable current water supplies to support greater demand."
The most active proponents of eliminating residential wells also want to expressly exclude themselves from such control. At least Roger does not support "grandfathering" to give special rights to some to the detriment of other property owners- or does he?
Caution should be used by readers who see language such as "...debating the appropriate basis for ascertaining property rights and the point at which an interest vests" The point at which the interest vests is the circular argument that the interests vying for YOUR water want to game. In particular, their position is that it is not your water until you capture it. So the argument continues with it is not a taking to prevent you from being able to access it in the first place because you haven't yet captured it.
This is precisely what Fraser's bill was filed - to clarify that the property right exists irrespective of who is in control of a groundwater district.
“The usual suspects in the water fights have pushed for legislative change to deny wells (including residential wells) to others while grandfathering themselves in. Real class acts.”
One name for the “usual suspects” is the no-growth group known as C.A.R.D. They masquerade as an environmentalist organization but in truth they just don’t want anyone else to be able to drill a water well as they already have. Environmentalists my butt, they are just Selfish water hogs.
The people living here now should have the right to protect their water resources from unsustainable development.
If the land cannot support more people moving here, then there should be a community consensus that bringing more population into the area is not such a bright idea.
When a person depending upon a domestic well fears the impact of new populations moving into the area putting pressure on water resources, this is understandable and to be expected.
The people who live here now, not some phantom migration encouraged by land speculators,home and road builders, should have a right to protect their water.
Those who have bought up cheap land with the express intention to build houses no one needs on land that cannot support those new homes are the ones I see as selfish.
They would destroy our water table, our streams and springs just to make a buck.
This is never simply about water, it is always about making money on water.
Growth is neither inevitable nor desirable in many situations. All living things have an optimum size and to go over that begs problems.
Our society needs to see and abide by reasonable limits or we risk overshooting ourselves in the foot.
Last Anonymous is a victim of his own bipolar thinking. CARD is simply an advisory group with no real power. Get a life, Anonymous, and don't forget to take your meds.
"Slow Down" expresses sane insight into practical economic thinking for local growth. I agree wholeheartedly.
And I have never heard the phrase "overshooting ourselves in the foot." But it sure seems to apply here.
@Slow Down:
Get real Slow Down. Who are you to decide "who" lives here. If you want to pursue a "fixed population" plan then let's make it fair, okay? There is a drawing every year for "people that are here" and property owners seeking to build residences on their property. Only each residence that draw a "you can stay" ticket can stay. If you are here you can stay. If you were planning to build then you can build. Otherwise you and your family have to leave. Now how does your "fixed population" plan appeal to you?
What you are proposing is that you deserve more rights than fellow property owners. You don't.
Your version of "community consensus" is absurd. You want to allow only certain people to vote and to vote to the detriment of those whose interests you wish to ignore thus defining community as only those that share your view. "Consensus" is nothing but groupthink and your post reveals many of the elements associated with groupthink:
1. Illusion of invulnerability
2. Belief in the morality of the group - you do not question the morality/legality of your actions
3. Close mindedness -Can't handle evidence that that does not support the "decision" - like property rights
4. Stereotyping of "outsiders"
5. Censorship - only statements supporting the group's objective are allowed
6. Ostracizing those that do not share the same view
7. Mindguarding - not allowing disturbing information to be considered by the group
8. Illusion of unanimity - you believe all in the group share your view
Anonymous, Your definition of “groupthink” and the 8 listed elements is best exemplified by HOA/POA organizations. It sure fits the one that lords over our little community. The kind of people that are drawn to theses groups are most often egocentric and self centered. They “know” what is best for their members regardless of the economical or moral outcome for their subjects. They operate within their own little world and deny others the “pleasure” of joining. They probably were abused as children and are now on a “get even mission” against anyone who doesn’t think and act the way they dictate. The best example of this type of thing is the early religious pilgrims with their established theocracies in New England. Population control by the numbers will certainly be followed by control by some more definitive and invasive criteria.
I see here snide comments relating to HOA/POA organizations within our neighborhoods. True, there are some(very few)within an association's hierarchy that think they know best and seek to push those thoughts/actions onto their membership without consulting the total membership. To my knowledge, joiners are encouraged. Far too few do so. There are those who "join" join specifically to push their own agendas, work behind the scenes to create divisiveness, are autocratic in their commentary, negative on most fronts. There are those who truly wish to serve their communities with little or no thanks for the positive accomplishments...one only hears of what's not happening.
Unless a commentator has a degree of some sort regarding psychology or psychiatry, labels concerning being self-centered, egocentric, abused as children or working on a "get even mission" should be left to those accredited to do so.
Anonymous #10 is obviously an HOA director or officer or a close affiliate and suffers from most if not all of the 8 aforementioned groupthink symptoms.
For example: "I see here snide comments relating to HOA/POA organizations within our neighborhoods. True, there are some(very few)within an association's hierarchy that think they know best and seek to push those thoughts/actions onto their membership without consulting the total membership. To my knowledge, joiners are encouraged. Far too few do so. There are those who "join" join specifically to push their own agendas, work behind the scenes to create divisiveness, are autocratic in their commentary, negative on most fronts."
Obviously you are referring to every HOA board out there. "Joiners" means those who accept the groupthink mentality. Look at your own statement - you are obviously a board director/officer that does not want to allow anyone who does not support "your" agenda on the board.
Anonymous #10 said: "There are those who truly wish to serve their communities with little or no thanks for the positive accomplishments"
A true statist viewpoint by someone suffering from a messianic complex. "Volunteering" does not mean that you are "serving" anyone other than your own ego. For example, thugs, burglars, embezzlers, etc. also "volunteer". A "community" is not itself an entity - so you can't "serve" a community and you certainly aren't serving the individuals within it with groupthink as you have evidenced in your own post.
Anonymous #10 said: "Unless a commentator has a degree of some sort regarding psychology or psychiatry, labels concerning being self-centered, egocentric, abused as children or working on a "get even mission" should be left to those accredited to do so."
Hahaha. So you want to be certified as such? Tell us which POA you are "serving" - not that it matters since they are all the same. POA = groupthink thugdom. A self-righteous minority impose their will on all the individuals in the subdivision under threat of fine and foreclosure on the individual's properties all under the pretext of "good for the community". Thugdom.
Me thinks Anonymous #11 doth protest too much.
Because he seems to know so much about POAs in general (most of which is untrue) I would venture a guess that he actually serves on a POA Board and his sole purpose is to be the antagonist.
Anon11 is right on about POA\HOAs.
They ALL devolve into a few individuals attempting to exert control over all their neighbours and usually under false pretences.
Look at WPOA. They foreclose on lots for failure to pay assessments. Supposedly assessments are so important that the WPOA must have the power of foreclosure to compel people to pay them.
However WPOA also gifts lots owned by the WPOA over to the Wimberley Valley Watershed Association and then excuses WVWA from having to pay assessments. So now some property owners (but not all) are given immunity from foreclosure.
What should that mean to the people that were foreclosed upon? What should that mean to the remaining paying residents? What value does WPOA serve other than gifting property that its involuntary members paid for over to David Baker's WVWA organization? Further investigation into Baker's and WPOA's dealings is long past due. Given Baker's role as a public figure, such investigation is justified.
#11 and #13 agrees with himself. 'Isn't that special.'
Be informed, Read the Bill at;
http://www.groundwaterownership.com/PDF/SB-332.pdf
It is overdue, simple and the right thing to do. Write your GCD and ask them to support Sen. Fraser's Bill, SB-332.
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