Texas farmers continue to confront escalating issues/laws governing water

By MANDY JOHN | Central Texas Edition

Dr. ED SMALL Attorney for Texas and Southwest Cattle Raisers Assn. and Texas Forestry Assn.

February 13, 2003 -- On Feb. 4, Brazos, Burle-son, and Robertson counties hosted a field crop seminar in Bryan. During the seminar Dr. Ed Small, attorney for the Texas and Southwest Cattle Raisers Association and the Texas For-estry Association, discussed interpreting water lease contracts.

Dr. Monte Dozier, assistant professor and Extension water resources specialist was also on hand to explain the roles and responsibilities of water districts.

"The water law started in the early 1900's," explained Small. "Texas law stated that it was a land owner's right to draw water out of his well for a beneficial manner.

"When it came to oil and gas issues, the state decided to use the same provisions as water. Beginning in 1985 and since then, there have been many cases regarding the use of oil and gas. Lawyers like myself could look in books and predict the outcome for these cases."

He stated that water issues until now have been different. "Any lawyer before now could count water cases with one hand. One of the most famous cases concerned Ozarka water. The resource and the ownership of the resource were protected. I predict now, though, that we will begin to have numerous cases involving water, as many as we now have with oil and gas."

Small said that there is a significant difference between the issue with water and the issue with oil and gas. Unlike the sources that produce oil and gas, aquifers are recharging all the time. "Science is coming along in great strides with this. We now know how much water to take out of a well without damaging a farmer's water resource.

"Water is becoming more valuable now. We now have specific ground water regulations. Unlike oil and gas, which you try to get out of the ground as fast as you can, you must get water out real slow. There is a limit to all that we do with water.

"We are going to move water around and take it out of the aquifer in order to make money. With water, you take it, produce it, transport it, and make money off of it."

He said that many farmer's question whether or not it's in their best interest to have a water lease. "The problem with a lease is that you can write the lease to protect yourself in every way possible, and throw everything on the operator. But you first have to find an operator that can afford to do that. There must be risk taken on both sides.

"Each of you must look at your own particular situation. I am not looking to represent everyone in this room. I am just trying to let you see the issue at hand. Today, I don't believe that there is a perfect solution to the water leasing problem that we have.

"I believe it's in the best interest of the community to work exceedingly hard with stakeholders to come up with a solution," he concluded.

"There is a Texas law that distinguishes between surface water and ground water," said Dozier. "All surface water, including streams, rivers, and lakes, is state water. Ground water is decided based on the rule of capture. This associates ground water with the landowner, which allows the state to determine liability for damages relating to the withdrawal and use of ground water.

He said that an aquifer is a geologic media that can yield various amounts of water. We manage the aquifer through the formation of the ground conservation district, although he said that could change.

"The first districts were formed in the early 1950's and were located in West Texas. They slowly started moving eastward as new ones were formed.

"The definition for a ground water conservation district is a local management entity for preserving, conserving, and protecting a ground water resource. The power and responsibility is given to a district through Section 36 of the Texas Water Code."

Dozier also stated that the districts are held accountable by four different groups. "They are held accountable by you as district residents, the Texas Water Development Board, the state auditor's office, and the Texas Commission for Environmental Quality."