March 3, 2000

The issue of groundwater management is quickly bubbling to the legislative surface. Senate and House Natural Resources committees charged with studying the issue during the interim period are asking critical questions that have far-reaching implications.

It’s apparent that there is a desire among key legislators to consider a change in the way the state manages the groundwater beneath its soil. How Texas Farm Bureau and other stakeholder groups respond to these questions will shape the legislative framework for debate in the 2001 session.

It seems the policy questions that will be answered by the legislature on this issue are: 1) Should groundwater continue to be the private property of the landowner? 2) If groundwater is to remain private property, how can it be protected? 3) How much governmental intervention is necessary to effectively protect a landowner’s right to groundwater? 4) If a landowner wants to maximize the value of groundwater in the future through water marketing, what management concept promotes a market for groundwater?

Our organization fully understands the seriousness and weight of these questions. Texas is truly at a crossroads in terms of water resource management. The current doctrine of "rule of capture" emanates from a 1904 court case. If there is legislative interest in altering our state’s historical groundwater law, then it is vital that Texas Farm Bureau be confident in its position heading into the debate. Fortunately, our organization is perfectly structured for such a task.

Our present TFB policy on groundwater states: "Underground water below privately owned land should, by law, be owned and fully controlled by the landowner and protected from seizure by eminent domain. We support the common law doctrine of rule-of-capture, but realizing the pressures of a more urban state and the availability of better pumping techniques for city and industry, we would look at other plans or concepts to protect agricultural and individual landowner rights for water under their property."

You can see that the answer to policy question No. 1 is "yes", but we are not specific enough in our policy position at this point to answer policy questions 2, 3, or 4. If not "rule of capture", what other method of groundwater management is best suited to protect the interests of farmers and ranchers? We will have an answer to this question once our organization has completed its policy development process.

Some folks in Austin are crediting the change in Texas Farm Bureau groundwater policy with prompting legislative interest in scrapping the "rule of capture" in favor of another method of groundwater management. That assertion is not true. We are not seeking a change.

TFB delegates did adopt the new groundwater language at their annual meeting. But if anything, the sense of legislative interest in the issue prompted our policy change by delegates. In addition, last year the Supreme Court ruled in a rather significant action that the ‘Rule of Capture’ was confirmed, but suggested that the legislature should make the final determination in changes to the age old doctrine. Supporters of the change argued the organization needs to be at the table if and when other groundwater policy alternatives are discussed. Our previous policy position directed the organization to support and consider only "rule of capture."

If you are interested in attending a public hearing of the Senate Natural Resources Committee or the House Committee on Natural Resources, or any other interim study committee of interest to agriculture, please call us here in Austin for an updated schedule of hearings or go to our organization’s web site for a complete list. There is now a direct link from the Texas Farm Bureau website’s main page to a list of upcoming House and Senate hearings.