Published on April 14th, 2010 | by Ashlynn Stillwell
Mark Twain allegedly once said, “Whiskey is for drinking; water is for fighting over.” While Mark Twain was a Missourian, his words also ring true for Texans.
And boy, do we fight over water. Water makes frequent appearances in Texas Supreme Court trials about rights to pump groundwater and flooding due to construction and the operation of water reservoirs. Fighting over water reached the U.S. Supreme Court in 1987 when Texas and New Mexico could not agree on flow in the Pecos River. And just this past February the City of Dallas went to court over its plans to construct a new reservoir in the same area of a planned wildlife refuge.
Why all this fighting over water? We need water. We are water – well, about 60 percent of the human body is water anyway. And with more bodies than ever before (that is, population), we’re bound to need more water if we don’t start conserving. Water might be for fighting over, but maybe it’s time to start fighting for more efficient water use.
Texas Water Rights
Water rights in Texas are confusing to those of us who do not live and breathe water allocation law. First, Texas water rights are allocated based on the type of resource (surface water versus groundwater). Surface water resources are the property of the state of Texas, requiring a permit to withdraw and use water, and are governed by a hybrid management system. The hybrid system in Texas gives landowners of property bordering a surface water source water rights – more specifically, riparian rights – to use water for ‘domestic and livestock’ purposes. After these riparian rights come the rights for all other water users in Texas, known as prior appropriation rights.
Prior appropriation surface water rights holders can withdraw and use water based on priority. When a water rights application is filed, the date is noted and becomes the priority date once the permit is granted. Who gets to withdraw water when is based on that priority date, regardless of where the water is withdrawn. As always, there are exceptions, but I leave that to your local water attorney.
For example, a rights holder with a priority date of February 24, 1943, can legally withdraw water before a rights holder with priority of, say, November 8, 1979. These priorities become important when drought leaves us without enough water to go around. In those cases, some junior water rights holders can find themselves without water.
Rights to groundwater are governed independently of surface water. Groundwater is owned by the landowner with property over the aquifer and is governed by the rule of capture. That is, once you’ve pumped groundwater from the aquifer, it’s yours to use or sell as you please. Thus, Texas groundwater law is commonly known as the “law of the biggest pump.”
Water in Texas is used for many purposes, including irrigation, livestock, mining, thermoelectric power generation, manufacturing and municipal activities. Based on projections from the State Water Plan published by the Texas Water Development Board, water use in 2010 will total about 1.2 trillion gallons, 76 percent of which goes to irrigation and 17 percent to municipal uses. A quickly growing population causes projected total water use to increase dramatically by 2060 to about 2.9 trillion gallons, with 2060 irrigation use at 42 percent and municipal at 44 percent. Based on those projections, water use in Texas will more than double in the next 50 years. It’s safe to say demand for water is going up in our thirsty state. Will our supply be able to match this demand?
What about water supplies? Based on current water supplies and use, less water will be available in the future, especially in times of drought. Limitations of existing water supply and infrastructure might leave Texans without water in the future during drought conditions.
Then there’s the question of climate change. Climate models predict increasing precipitation in some areas of Texas with decreasing precipitation in others. While we can’t say exactly the effect of climate change on water resources, the future of water in Texas is bound to be less predictable than our current situation.
An Efficient Water Future
A larger population doesn’t always mean increased water use. Municipal water conservation and reuse can serve as a new water supply in the future when incorporated into water management strategies. Low-flow toilets, high-efficiency washing machines, water-efficient fixtures and smart irrigation in all Texas homes could take us a long way, possibly avoiding construction of new reservoirs and use of alternative water supplies like desalination or long-haul water transfer.
Water might be for fighting over, but maybe it’s time to start fighting for more efficient water use.