Legal Challenges to Water Conservation Are Plentiful

The most daunting barrier to widespread adoption of locally-driven cuts in water withdrawals from the Ogallala are deep-rooted legal legacies. Like the plains geography and hydrology, the law of the land is not uniform.

By Brett Walton
Circle of Blue
January 19, 2014

Kansas regulates both aquifers and rivers under the system of prior appropriation, a legal code that gives priority to those who historically used the water first. To pump from either source, a permit is required. Texas uses the same approach for rivers. But for aquifers, the legal terrain is shrouded in uncertainty.

Since a state Supreme Court ruling in 1904, the guiding principle in Texas has been the “rule of capture,” meaning land rights entitle a landowner to the water underneath his property. But Texas water law also gives the state’s 99 groundwater conservation districts the right to regulate groundwater withdrawals, in theory superseding the rule of capture.

Three districts in the Panhandle have attempted such regulation. A recent court case, however, cast doubts on the ability and willingness of the districts to enforce their mandate. In August, the Texas Court of Appeals ruled in Edwards Aquifer Authority v. Bragg that a restriction on groundwater amounts to a “taking” of a landowner’s property and that compensation may be required.

Danny Krienke is a farmer in the Texas Panhandle and a board member of the North Plains Groundwater Conservation District, which put modest pumping restrictions in place in 2005 and strengthened them last year. He told Circle of Blue that it is too early to determine the consequences of the Bragg case for his district. “But that’s not to say we won’t be challenged,” he said.

Meanwhile in Kansas, a lawsuit currently before the Haskell County District Court may halt the spread of voluntary and legally binding pumping restrictions, according to a water manager in southwest Kansas. These zones of self-restriction are called local enhanced management areas, or LEMAs.

In May 2012, Jay Garetson, a senior water-right holder, filed a claim with the district court that the water being pumped by his neighbor, a junior holder, was affecting his wells. The court appointed the Kansas Department of Water Resources a fact-finder in the case. The state found evidence that the neighbor’s water use was having an effect on Garetson, but the state claimed that more research would be necessary to determine the extent. Garetson did not respond to an interview request sent to his lawyer.

Both Garetson and his neighbor live within the Southwest Kansas Groundwater Management District, whose constituent counties use more water from the Ogallala than any in the state. Unlike in northwest Kansas, no LEMAs exist there.

Mark Rude, the groundwater district’s manager, says that the Haskell County case represents Western water law butting up against neighborhood initiatives. “There has been a lot of conversation about LEMAs, but it has cooled a bit because of the court case,” Rude said in an interview in his office in Garden City.

A LEMA is a voluntary decision taken by counties or groundwater districts. A separate court case, however, has thrown into question the state’s authority to restrict groundwater use. In December, the Kansas Court of Appeals ruled that once the state issues a groundwater permit, its water regulator cannot reduce the amount of water the license-holder can pump. The case has been sent back to district court.