Disagreements over water are nothing new, but depletion and dependency on the aquifers below the ground’s surface are escalating disputes over water rights across the High Plains.
In Texas, the state appeals court found that groundwater regulation resulted in a violation of property rights under the Texas Constitution in the case of Edwards Aquifer Authority v. Glenn and JoLynn Bragg. The Texas Tribune reported this ruling further fuels a fiery debate over whether groundwater can be protected alongside private property rights.
Texas owns the surface water in rivers, streams and lakes, and governs its allocation. But below the surface, it’s a new set of rules. Water is the property of the landowner, and the “rule of capture” applies. That means the owner can pump as much water as they want, and they are not liable for depleting the neighbor’s supply.
“This whole issue will ultimately be resolved by litigation and not legislation,” said Andrew Sansom, executive director of the Meadows Center for Water and the Environment at Texas State University. “A lot of it will be between private landowners, both of whom have been told by the state that the water is theirs.”
In Kansas, all the water is owned by the state. Residents can use the water according to the state’s rules and regulations. The Kansas Water Appropriation Act says it is illegal to use any water in Kansas without a valid water right unless it is for domestic use only. Kansas is a "first in time-first in right" state- the ownership of a water right protects your use against all users who develop a right after you. The older the water right, the better, in terms of securing water.
Rick Kolbeck and his wife thought they were safe when they started a small organic farming and ranching operation near Dodge City in 2000. Their water rights dated back to 1948 reported the Topeka Capital-Journal.
Kolbeck says his water woes began with the expansion of the National Beef Packing Company, which owns seven wells in conjunction with the city of Dodge City.
The city and National Beef disputed their water use was impairing his, so Kolbeck took his complaint to the Department of Agriculture's Division of Water Resources, and eventually to district court. Delays in getting a hearing may prove more than his bank account can bear.
“I just don’t know what to do," Kolbeck said. "I thought the laws were supposed to protect me, but I was wrong.”
Farm advocates say these clashes will be more common as the Ogallala aquifer becomes increasingly depleted, and just like Kolbeck, water rights will not ensure an adequate water supply.
Kent Askren, assistant director of natural resources for Kansas Farm Bureau said, “I know there have been several impairment complaints that have been filed with the state and some of them are in active investigation at this time," Askren said. "As the aquifer declines, there are going to be some people who are unable to exercise their water rights.”