technologies related to the beneficial uses of produced water, including environmental and public health considerations. See Rusty Smith et al., Beneficial Use of Produced Water in Texas, Texas Produced Water Consortium—Report to the Texas Legislature 2024, Texas Tech Univ. (Oct. 16, 2024), https://www.depts.ttu.edu/research/tx- water-consortium/. In recent years, the Texas Legislature has shown a growing commitment to addressing produced water and supporting future technological developments in its treatment and reuse. With all the innovation and new legislation, the Texas Supreme Court is also diving into the produced water conversation. This past March, a question of first impression was raised in Cactus Water Services, LLC v. COG Operating, LLC . In Cactus, an oil and gas producer and a third-party water company were at odds over the ownership of the produced water. See Cactus Water Servs., LLC v. COG Operating, LLC , No. 23-0676 (Tex. June 27, 2025); see also Cactus , 2025 Tex. LEXIS 591 (June 27, 2025). Under the law at the time of the conveyances at issue, COG Operating, LLC, the producer, was charged with proper handling and disposal of produced water. See Cactus , 2025 Tex. LEXIS 591, at 7. Cactus Water Services, LLC, the third-party water company, contended that once the hydrocarbons were separated, the remaining water mixture, or produced water, belonged to the surface owner. See id. at 2 . The Texas Supreme Court ultimately held that under typical lease language conveying oil and gas rights, produced water is a part of the conveyance, even though not expressly addressed. Therefore, absent express language otherwise, produced water belongs to the operator, not the surface owner. See id. at 29.
disposal methods. At the same time, advances in technology now allow for secondary recovery from produced water, enabling the extraction of valuable minerals and effectively turning trash into treasure. See Ewa Knapik, Grzegorz Rotko & Marta Marszałek, Recovery of Lithium from Oilfield Brines—Current Achievements and Future Perspectives: A Mini Review , 16 Energies 6628 (2023), https://www.mdpi.com/1996- 1073/16/18/6628. Further, alternative uses of produced water have piqued the interest of operators, offering the potential to generate additional revenue streams while simultaneously lowering disposal costs.
Drought and water crisis
Typically, water used in fracking is surface or groundwater. See Alejandra Martinez & Jayme Lozano Carver, Texas Is Running Out of Water. Here’s Why and What State Leaders Plan to Do About It. , Tex. Tribune (Mar. 13, 2025), https:// www.texastribune.org/2025/03/13/texas-water- explained-supply-demand/(defining surface vs. groundwater). However, Texas is facing a water crisis. The Texas Water Development Board State Water Plan indicates Texas could face a 6.9 million acre-feet shortage of water by the year 2070. See Texas Produced Water Consortium, supra note 15 at 9. To put this in perspective, in 2022 Texas used 15.2 million acre-feet. See Historic Water Use Summary and Data Dashboard, Tex. Water Dev. Bd., https://www.twdb.texas.gov/waterplanning/ waterusesurvey/dashboard/index.asp (last visited Aug. 14, 2025). If no water management strategy is put in place and Texas experiences another record high drought, approximately twenty-five percent of Texans could have less than half the municipal water supplies they need. See Texas Produced Water Consortium, supra note 15 at 10. Texas’ water shortage is even more pressing for West Texas and the Panhandle. About fifty-five percent of water used in Texas is sourced through aquifers, which are being stressed at record levels. See Water Is Good for Texas , Econ. Notes, Tex. Comptroller (2022). The Ogallala Aquifer, specifically, is one of the world’s largest aquifers, supplying groundwater to eight states, including Oklahoma, New Mexico, and Texas. See What Is the Ogallala Aquifer? , Neb.
III. Why should we care?
While produced water is increasingly at the center of both the courts and the Legislature, why should we care? Texas is confronted with two emerging problems tied to produced water: (1) an escalating water crisis driven by persistent drought and (2) the decreasing viability of traditional
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