Benjamin Franklin once said, “When the well is dry, we’ll know the worth of water.” Unsurprisingly, the precious resource he acknowledged is the same one that people fought and died over. While violent disputes used to provide the typical means to acquire water rights, states since then regulated water ownership in a manner suitable to their geographical location and purposes. Texas and Colorado take their own respective approaches to statutory regulations, particularly when focusing on aquifers. This article compares how Texas Groundwater Conservation Districts and Colorado Ground Water Management Districts regulate aquifer mining and depletion. Both states base their controlling schemes over water rights on the legal principle of “first in time, first in right.” However, Colorado assumed the Prior Appropriation Doctrine, Texas took on a hybrid version—the Rule of Capture. The Texas Legislature refining regulatory bodies governed mainly by said separate entities created by the state legislature supersedes the Rule of Capture. The Rule of Capture’s remnants remain in some of the current governing rules in Texas. Meanwhile, Colorado remains steadfast in its application of Prior Appropriation. Despite having different approaches, Texas and Colorado both created Groundwater Conservation Districts to manage areas statewide with little to no water. This blog focuses specifically on those districts and the statutory foundations upon which they rest. Regardless of the statewide structure governing water rights, both states share similar policy goals. In the face of environmental concerns, such as subsidence and the resulting evolving geological areas, both Texas and Colorado must address the ever-growing need for more water, both in and out of aquifers. I. State Approaches to Aquifer Regulation And Well Spacing A. Texas Groundwater Conservation Districts After the U.S. Constitution and federal laws, the Texas Legislature holds the ultimate authority to enact laws governing water rights and management. It delegates specific powers to state agencies and local entities to implement and enforce the Texas Water Code through the Texas Commission on Environmental Quality (TCEQ). The genuine “boots on the ground” enforcers specific to groundwater management are Groundwater Conservation Districts (GCDs). Texas granted GCDs the authority to regulate well spacing and groundwater production. Statutorily, these GCDs remain the state’s preferred method of groundwater management to preserve property rights across Texas while balancing conservation and development concerns; however, the state not always prioritizes considerations of conservation and development. Historically, Texas followed the Rule of Capture, which allows a landowner to pump water from beneath his or her property, even at the expense of his or her neighbor. The rule established in 1904 by the Texas Supreme Court in Houston & T.C. Ry. V. East, which held that a landowner had no legal remedy against a railroad company that had moved next door and drilled a larger well, causing the landowner’s well to go dry. The court’s simple solution for the landowner: drill a bigger, deeper well than the railroad. Over time, establishing GCDs addressed specific policy concerns and granted regulatory authority over groundwater. To simplify, Texas state law sets the framework; TCEQ rules govern broad permits and quality; and the GCDs manage groundwater production, depletion, and protection. It is interesting to note that, under Texas law, tributary groundwater is not defined separately from non-tributary groundwater. Instead, the statute creates two primary categories of water: surface water and groundwater. The primary focus centers more on each GCD’s ability to adopt rules suitable for each aquifer, subdivision of an aquifer, or geographic area overlying aquifer boundaries. This can account for the unique characteristics of each aquifer, especially when considering the varying climates across the state, as well as to categorize the aquifer’s physical attributes—i.e., what Colorado distinguishes as tributary or non-tributary. GCDs combine the physical characteristics of an aquifer with defining the “ best available science ” to combat issues that may arise. This boils down to utilizing “conclusions that are logically and reasonably derived using statistical or quantitative data, techniques, analyses, and studies that are publicly available to reviewing scientists and can be employed to address a specific question.” The relevant question that arises from this statutory line of thinking is this: Is the reliance on scientific methods too exclusionary of relevant human interests? There seems to be a fine line. While science remains a strong method for determining relevant environmental concerns, it is not always kind to the economic and personal interests of smaller parties, such as farmers and ranchers living in rural areas. B. Colorado Ground Water Management Districts As the state that first developed and implemented the Prior Appropriation Doctrine, Colorado remains known for its water courts and precedent governing all rights to water. The Prior Appropriation system dictates that appropriation occurs when someone removes water from a water source and then puts it to a beneficial use. The first person to take the water and put it to a beneficial use gains priority over subsequent appropriators, and once receiving a court decree verifying status, becomes a senior water right owner relative to subsequent appropriators. Senior owners’ priority over junior water right owners, with the underlying expectation that senior owners’ “call” for water fulfills before any other water owners. Notably, the Colorado Ground Water Management Act of 1965 (GMA) modified said Prior Appropriation system to prevent unreasonable aquifer depletion on Colorado’s Eastern Plains, where notably less water connects to surface streams. The GMA established the Colorado Ground Water Commission (GWC), which governs the Ground Water Management Districts (GWMDs). Both entities have jurisdiction over designated groundwater , which is statutorily distinct from tributary groundwater. Designated groundwater encompasses water located within designated basins that either (1) would not feed into decreed surface water rights, or (2) is in areas lacking a constant natural stream where groundwater serves as the primary water source for at least 15 years prior to the basin’s designation. Essentially, this boils down to water that provides a de minimus impact on surface streams. The GWC holds the authority to adjudicate designated groundwater rights only, as well as issue large capacity well permits. In contrast, the GWMDs represent local districts wherein there is more administrative power within their designated boundaries. GWMDs retain authority to regulate the use, control, and conservation of groundwater within their boundaries. GWMDs can adopt controls and regulations to minimize the lowering of the water table, subject to review and approval by the GWC. If anything, this specific governance over designated groundwater provides a balance of economic development with aquifer sustainability. II. Regulatory Mechanisms to Handle Drawdown & Depletion A. Texas Texas GCDs intend to regulate groundwater production to minimize aquifer drawdown, prevent subsidence, and protect water quality. To do this, GCDs can adopt rules to regulate well spacing to prevent well-to-well interference and reduce the depletion risk. GCDs can also limit groundwater production based on acreage and impose production limits to ensure sustainable aquifer use. GCDs consider a multitude of factors when implementing rules specific to drawdown and depletion regulation, including, but not limited to, hydrological conditions, recharge rates, and socioeconomic impacts, when estimating desired future conditions for aquifers. Further, Texas Water Code Chapter 36 grants GCDs discretion to regulate groundwater production to preserve historic or existing uses. The main workhorse provision for dealing with well-to-well interference and localized depletion focuses on district regulation of well spacing and production to prevent waste and the protection of groundwater reservoirs. Many GCD rules base production limits on acreage or tract size and impose minimum spacing between wells to reduce interference between cones of depression and avoid unreasonable impacts on existing wells. At the same time, other statutory requirements require most non-exempt wells to obtain permits, and districts must evaluate those well applications against their management plans and the regional “ desired future conditions .” Those desired future conditions essentially act as a statutory cap on how much depletion is acceptable in a particular aquifer. These implementations layer over the Rule of Capture, as well as case law, which push districts to balance their state-mandated code with potential takings claims when they limit pumping too aggressively. B. Colorado Colorado GWMDs, on the other hand, govern designated groundwater, and the aquifers they govern are already facing long-term depletion. Instead of the pure conservation mandate that Texas possesses, Colorado’s statutes primarily focus on preventing “unreasonable injury” or “material injury” to existing water rights, as laid out in specific well-permitting provisions. The Colorado Supreme Court previously interpreted these statutes to mean that prior appropriators are not entitled to a “frozen” water table; i.e., that some drawdown is statutorily allowed so long as it does not unreasonably impair earlier wells. Colorado’s permitting rules directly tie into well-to-well interference and aquifer mining. The GWC has to decide whether unappropriated groundwater is available and whether a proposed well will cause material injury to vested rights. It can deny or limit permits with conditions to follow if those standards are not met. In some situations, Colorado law requires augmentation or replacement plans, which provide means to replace depletions to avoid injury. Unlike Texas’s future conditions consideration, Colorado does not always aim to meet a specific target of drawdown; instead, the “unreasonable injury” and “material injury” language function as a legal limit for how much aquifer decline is tolerated within a designated basin. II. Challenges & Policy Considerations A. Comparison of the Challenges Each State Faces One of the biggest challenges that Texas must consider is that its framework sits on top of the old Rule of Capture background, while also telling GCDs that they are supposed to conserve and protect the water that landowners think they own. The Texas Water Code recognized that landowners have “ ownership of groundwater in place .” It then clarifies how that ownership is defined by stating that it is subject to “ regulation under this chapter and under the rules adopted by a district.” At the same time, another section lays out what seems like an ambitious policy: districts must provide for “the conservation, preservation, protection, recharging, and prevention of waste of groundwater and of groundwater reservoirs or their subdivisions, and to control subsidence caused by withdrawal of groundwater.” In other words, GCDs essentially respect private property rights but also keep aquifers from being mined and the land from sinking, which is a bit of a tightrope. Texas courts also added pressure by recognizing takings-like claims in groundwater regulation. The Texas Supreme Court previously acknowledged in Edwards Aquifer Authority v. Day that landowners possess a constitutionally protected interest in groundwater in place, and district regulations that go “too far” could potentially be held responsible for providing compensation. This could reasonably make a district nervous about utilizing the full extent of its statutory powers under provisions governing spacing and production, or even permitting, to really clamp down on drawdown and depletion. Thus, a district might actually be squeezed from three directions at once: landowners invoking precedent, regional desired future conditions that say “you can’t pump that much,” and a statutory conservation and subsidence mandate that doesn’t really create a clear safe harbor. It is not shocking that implementation looks uneven from district to district. Colorado’s challenges look a little different because the foundational system is Prior Appropriation, but many of the practical roadblocks are similar. The Colorado GMA creates the category of “designated groundwater” and puts it under the jurisdiction of the Colorado GWC and local GWMDs. While considering the plain language of the statute seems clarifying, in reality, figuring out what is designated versus tributary, and how much connection there is to streams, can be complicated and politically touchy. Additionally, the GMA assumes that some level of aquifer mining will occur and then tries to keep it within tolerable bounds, which, in theory, is logical. The GWC is supposed to issue large capacity well permits only when there is unappropriated groundwater and when existing rights won’t suffer substantial injury. As noted in Jaegar v. Colorado Ground Water Commission, the Colorado Supreme Court made it clear that prior appropriators in designated basins do not guarantee that the water table will stay where it was when they drilled; rather, the GMA protects from unjustified impairment. This gives the GWC and the local districts some flexibility, but also means that they must make controversial judgment calls about how much decline is too much. The Colorado Supreme Court also stressed that the GWC must weigh economic development and beneficial use against aquifer conditions when deciding whether additional wells are compatible with statutory standards. Thus, it seems that Colorado regulators constantly balance the statutory foundation of Prior Appropriation against the explicit decision in the GMA to allow planned depletion. B. Takeaways Each State Could Learn from The Other One obvious notion that Colorado might learn from Texas is how to be more explicit about conservation and subsidence in the text of the statutes. Texas regulations remain quite blunt in stating that GCDs exist to conserve and preserve groundwater, recharge aquifers, prevent waste, and “ control subsidence caused by withdrawal of groundwater.” That clear-cut statement of policy gives Texas districts a straightforward rule when they adopt strict spacing or production limits or when they justify denying permits. While Colorado’s designated-basin provisions in Title 37 speak about “beneficial use” and “material injury,” those provisions are less direct about long-term conservation goals. As climate change and long-term declines start to intensify, Colorado might benefit from adding a more modern conservation and aquifer-protection policy section. Colorado could also look at Texas’s “desired future conditions” approach as a model for more explicit basin-wide planning. Texas code requires districts within a specific GCD area to adopt said conditions for each relevant aquifer, and then the Texas governing authority uses those estimated future standards to create modeled available groundwater values that effectively set a ceiling on permissible pumping. This process forces a collective conversation about how much drawdown is acceptable by a given year, which is quite necessary when considering juggling economic and environmental interests along with consumptive and domestic uses. Colorado’s GWC and GWMDs already retain their own authority to adopt basin rules, but there is less emphasis on calculating a specific future condition for the aquifer. Borrowing a concept such as a “designated basin future condition” could give stakeholders in Colorado a clearer sense of how the law is trying to guide long-term aquifer conditions, rather than leaving that mostly implicit in GWC decisions. On the flip side, Texas might take a page from Colorado’s more candid treatment of aquifer mining and the concept of “unreasonable injury” in designated basins. The GMA basically admits that some aquifers will draw down over time, but insists that the drawdown managed so existing appropriators are not unreasonably or materially injured. Case law reinforces the idea that regulators should determine what decline is manageable and consistent with statutory standards, and then enforce that line. Texas’s “desired future conditions” framework does something similar in practice, but the statutory text is not strong enough to fully meet this bar. While some Texas code discusses conservation and planning, primary pieces of the code do not squarely address that, in some places, the political choice might be to allow a controlled mining of the aquifer to support agriculture or municipal growth for a limited time. Adding clearer verbiage about when and how planned depletion is allowed may make the entirety of the Texas Water Code more honest and, arguably, easier to defend in court. Texas could also learn from Colorado’s more formal standard for material injury to protect existing users. In designated basins, the Colorado GWC must deny or issue conditional permits if doing so would cause material injury to vested water right owners. Texas districts certainly mention protecting “historic use” and preventing waste, and are supposed to consider socio-economic impacts and aquifer conditions when setting “desired future conditions,” but the code does not provide explicit parameters for when the changes to an existing well are deemed unacceptable. Taking a more explicit, “no unreasonable impairment of existing wells” standard and embedding it in the Texas code could help districts justify tougher decisions to cut permitted amounts or deny new wells in already lowered or stressed areas. III. Conclusion Texas and Colorado carved out their own statutory paths to address aquifer mining, depletion, and drawdown that reflects each state’s distinct legal traditions and environmental considerations. Texas relies on locally driven GCDs, guided by somewhat vague, broad conservation and subsidence control goals. Colorado’s GWMDs, created under the GMA, establishes a regime for designated groundwater, setting acceptable limits on aquifer decline through the Prior Appropriation standard. Both systems illustrate the difficulty of using law to ration a finite renewable resource. Overall, these systems suggest that future statutory refinements should focus on sharpening planning goals by integrating climate considerations and creating clearer statutory standards through updated terminology for the tolerable level of drawdown to support economic development and water-supply reliability. SOURCES Tex. Const., Art. XVI, § 59(a). Tex. Water Code § 5.013. Tex. Water Code § 36.116; see also Tex. Water Code § 36.101. Houston & T.C. Ry. v. East, 81 S.W.279, 280 (Tex. 1904). Id. Tex. Water Code § 36.001. See § 36.116. Colo. Rev. Stat. § 37-90-103. Tex. Water Code § 36.0015(a). Id. Water Rights, Colo. Div. of Water Rights, https://dwr.colorado.gov/services/water-administration/water-rights . Colo. Rev. Stat. § 37-90-101; see also Jaeger v. Colo. Ground Water Com., 746 P.2d 515, 520, 523 (Colo. 1987). Colo. Rev. Stat. § 37-90-103. Colo. Ground Water Comm’n, Colo. Div. of Water Rights, https://dwr.colorado.gov/public-information/boards-and- commissions#:~:text=Colorado%20Ground%20Water%20Commission%20(CGWC,(Division% 20of%20Water%20Resources). Colo. Rev. Stat. § 37-90-130. Colo. Rev. Stat. § 37-90-131. Colo. Rev. Stat. § 37-90-111; see generally Front Range Res., LLC v. Colo. Ground Water Comm’n, 415 P.3d 807, 811 (Colo. 2018). Tex. Water Code § 36.0015(a). § 36.116; see also Tex. Special Dist. Loc. L. Code § 8887.103. Tex. Water Code § 36.108. § 36.116. Id.; see also Tex. Water Code § 36.101. Id. See Tex. Water Code § 36.1132; Tex. Water Code § 36.1071; Tex. Water Code § 36.108. § 36.108. See generally Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 832-33 (Tex. 2012). Colo. Rev. Stat. § 37-90-137. Jaeger, 746 P.2d at 520, 523. Colo. Rev. Stat. § 37-90-137. Colo. Rev. Stat. § 37-90-103(12.7); Colo. Rev. Stat. § 37-92-305. § 37-90-137. Tex. Water Code § 36.002. Id. Tex. Water Code § 36.0015. See Edwards Aquifer Auth., 369 S.W.3d at 832-833. Tex. Water Code § 36.116; Tex. Water Code § 36.113. Colo. Rev. Stat. § 37-90-103. Colo. Rev. Stat. § 37-90-137. See Jaeger, 746 P.2d at 520, 523. See id. See Front Range Res., LLC, 415 P.3d at 811-12. Tex. Water Code § 36.116. See id.; see also https://dwr.colorado.gov/public-information/boards-and- commissions#:~:text=Colorado%20Ground%20Water%20Commission%20(CGWC,(Division% 20of%20Water%20Resources). See Colo. Rev. Stat. § 37-90-137. See Tex. Water Code § 36.108. Id. Colo. Rev. Stat. § 37-90-131. Colo. Rev. Stat. § 37-90-137. See Jaeger, 746 P.2d at 520, 523; see also Front Range Res., LLC, 415 P.3d at 811-12. See Tex. Water Code § 36.108. See Tex. Water Code § 36.0015. Colo. Rev. Stat. § 37-90-137. See Tex. Water Code § 36.116; see also Tex. Water Code 36.108. Colo. Rev. Stat. § 37-90-137; see Jaeger, 746 P.2d at 520, 523.