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ABSTRACT

In Texas, groundwater and surface water are managed differently. Surface water is state-owned and governed by the doctrine of prior appropriation. Groundwater law is evolving and based upon a combination of court cases and legislative actions. Like soil, groundwater is property of the surface landowner. The 1904 East case confirmed the absolute ownership of water or the “rule of capture” for beneficial use, limited only in that malicious use or willful waste and, later, subsidence of adjoining properties were not permitted. The Texas Supreme Court later indicated that rule of capture might not be appropriate doctrine, but it declined to replace it with an alternative management doctrine. In the 1990s, there were two major legal changes to the existing legal regime. First, groundwater conservation districts were designated as the preferred method for groundwater management, further emphasizing local control. Second, protection of endangered species in Edwards Aquifer springs necessitated pumping restrictions. More recently, the Day case determined that landowners had a vested property right in water below their land prior to its capture, and the Bragg case determined that, in the facts of that case, the restricting of pumping of groundwater was a taking requiring compensation. Legal constraints will be an important factor in determining the future development of the Edwards Aquifer and associated water resources.

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