Legal Actions Limited for Texans Who Want to Block Water Usage for Oil Drilling

The West Texas oil boom has sprouted new businesses that want to pump something other than oil – water.  At least four new companies are hoping to pump water from aquifers that can be sold for use in hydraulic fracturing, or fracking.

That worries some residents in the region, where water is a precious resource. Some are talking about lawsuits. Austin environmental lawyer Leonard Dougal of Jackson Walker LLP is a former petroleum engineer who represents landowners and developers of water projects in West Texas. He says Texas property law is well established that the landowner owns the water below, just like the oil.

But Texas has a fragmented system of regulating groundwater, with about 100 groundwater conservation districts that regulate drilling and production of groundwater in their local region. The districts’ goals are generally to protect the aquifers and to attempt to impose some fair rights to usage, such as restrictions on well spacing and pumping. A well-known example is the Edwards Aquifer Authority, which regulates wells that produce high-quality water across Central and South Texas.

The district boards are generally composed of landowners, so there is often a common interest in approving usage that benefits the local area. Oil and gas development brings jobs, for example. But if a company wants to develop a well field, then pump and transport water outside the district, that type of proposal will get much more scrutiny.

If an application meets the district’s rules, then it should be approved by the board. Of course, some residents might disagree. They could sue the conservation district on the grounds that board members failed to meet their duty to protect the groundwater aquifer. But the plaintiffs might run into questions of their standing to sue, difficulty in proving the board failed to follow the law, or even governmental immunity.

Water rights have been the source of many court challenges. In Southern California, part of an aquifer lies beneath federal lands occupied by a Native American tribe seeking a say in how that water is used by the public utilities controlling it. The U.S. Supreme Court may take up that issue this fall.


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