Texas Landowners Council

Groundwater

 

High Court Confirms Ownership of Groundwater

February 24, 2012


Jimmy Gaines, president of Texas Landowners Council, today heralded the Texas Supreme Court for its landmark decision in one of the most watched cases on the Court’s docket, Edwards Aquifer Authority v. Day.  “This is just a stellar day for Texas landowners and for sound groundwater management,” said Gaines.  “The Court confirmed that landowners own groundwater in place beneath the surface of their farms and ranches, just like they own the oil and gas in place.”  The Court declared that Day, who owned land above the Edwards Aquifer, had an ownership interest in the groundwater beneath that land that could be the subject of a takings claim if the EAA regulated in such as way as to infringe on his constitutionally protected rights.  The Court held that this constitutionally protected right was subject to the often misunderstood “rule of capture” and to reasonable regulation under the police power of the state, but concluded that “groundwater rights are property rights subject to constitutional protection, whatever difficulties may lie in determining adequate compensation for a taking.”


Texas Landowners Council, which was formed in 1990 by landowners who recognized the need to protect property rights under the United States and Texas Constitutions, filed an amicus brief in the Day case.  “Our brief took what proved to be the correct legal position—that Texas statutes and cases have long pointed to the fact that landowners own a vested and constitutionally protected right in the groundwater without having to reduce it to possess at the surface” said Gaines.  “The alternative,” he noted, “is that the state owns the groundwater.  That result would have been absolutely counter to our system of government.”


Groundwater district managers and representatives of groups such as the Sierra Club predict that the decision in Day will make regulation of groundwater impossible.  Marty Jones of Amarillo, who serves as general counsel to Texas Landowners Council, responds that the regulatory system for groundwater will not fall apart.  “The sky is not falling.  The Court did not say that groundwater districts cannot regulate the use and production of groundwater.  It just said that such regulation must be reasonable.  Surely the Texas groundwater districts aren’t telling us that they can’t be reasonable.” 


Gaines questions various sources who claim that the Day case spells disaster for sound groundwater management, noting that the decision should empower landowners to demand that groundwater districts enact and enforce sound management rules to protect water resources from unregulated use.  “Landowners ought to be able to insist that their local GCDs make and enforce uniform, impartial rules.  A good, sound system protects all of the landowners instead of just the favored few.”


According to Jones, as long as groundwater districts don’t cut off access to groundwater or discriminate between users who stand in the same boots, there should be no onslaught of litigation.  “The Railroad Commission had shown us over the years that reasonable regulation of underground resources is possible.  The Court has now told us that groundwater is owned just like oil and gas, so the groundwater districts should be able to get with the program.”  If not, Gaines adds, “we’ll be watching.”




Texas Supreme Court Cases


Rule of Capture


Houston & T.C. Railway Co. v. East (1904)


The rule of capture originated in Roman law, was adopted into English common law, and was adopted by the Republic of Texas in 1840.  In 1904, the Court affirmed the rule of capture, meaning there is no liability for withdrawing groundwater to the extent that others’ wells are depleted.


Sipriano v. Great Spring Waters of America, Inc. Case 98-0247 (1999)


The Court stated:  “We see no reason ... for the Legislature to feel constrained from taking appropriate steps to protect groundwater.”  Justice Nathan L. Hecht explained that “for now--but I think only for now--East should not be overruled.”  This is interpreted to mean that the Court will modify the rule of capture if the Legislature does not.


Change of Use


Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel (2012)


Texas Landowners Council, Texas Wildlife Association, Texas and Southwestern Cattle Raisers Association and Texas Farm Bureau Amicus Letter July 9, 2010


Texas Landowners Council Amicus Curiae by Marvin W. Jones, February 12, 2010


“Commissioner Staples Makes Formal Request to Texas Supreme Court on Case Involving Private Groundwater Rights”

Texas Department of Agriculture Press Release February 12, 2010


“Who owns groundwater in the aquifer?”

By Colin McDonald, San Antonio Express-News February 18, 2010


“Who owns the water beneath your property?”

By Cynthia Cox Payne, Bandera County Courier Headline News February 25, 2010


Guitar Holding Company, L.P. v. Hudspeth County Underground Water Conservation District No. 1, et al. (2008)


Justice David Medina stated:  “The court of appeals upheld the District’s permitting scheme, concluding, in effect, that the District’s authority to preserve the ‘historic or existing use’ of groundwater pertained only to the amount of water used in the past and not its purpose.  We conclude, however, that the amount of groundwater used and its beneficial purpose are components of ‘historic and existing use’ and that the District thus exceeded its rule-making authority in grandfathering existing wells without regard for both.”  The District must rewrite its rules to comply with this decision. 


Guitar family attorney Russ Johnson of McGinnis, Lochridge & Kilgore, L.L.P. explained:  “What the state is saying with this ruling is that landowners are not going to be punished in terms of access for conserving the water resource by not using it. Now all landowners’ rights are on equal footing when it comes to any kind of new use, and if there is a revenue to be generated from this resource through a water marketing scheme, then all landowners potentially have a right to share in that scheme.” This decision recognizes true vested rights to groundwater and affirms that there cannot be a vested right to a new use.


8th Court of Appeals (El Paso County) Case:  Rule of Capture


Pecos County Water Control and Improvement District No. 1 v. Williams (1954)


After pumping caused Comanche Springs to stop flowing, the El Paso Court of Appeals affirmed the rule of capture but noted that, “It may be that the answer to this unhappy situation is legislative.”




Bandera County Courier Farm and Ranch News:  TLC Articles


“Groundwater legislation - crucial to landowners”

By Lauren Stucky, October 18, 2007


“The need for groundwater rights per acre”

By Lauren Stucky and Jimmy Gaines, December 6, 2007


“Eminent domain, groundwater law at forefront of TLC conference”

By Lauren Stucky Flake, February 14, 2008


“Water Worries in Milam and Burleson Counties”

by Lauren Stucky Flake, April 3, 2008


“TLC attends TPPF Groundwater Policy Primer”

By Lauren Stucky Flake and Jimmy Gaines, October 2, 2008


Resources


Texas A&M University Real Estate Center:  Water Rights Publications


Texas Public Policy Foundation:  Ground Water Publications


“‘Right of capture’”

By Lee Kneupper, Bandera County Courier Letters to the Editor April 15, 2010


Texas Water Development Board:  Groundwater Conservation Districts


Texas Alliance of Groundwater Districts:  Groundwater conservation district information


Sprouse Shrader Smith, P.C.:  Texas Groundwater Law


Baylor Law Review:  “The Ownership of Groundwater in Texas:  A Contrived Battle for State Control of Groundwater” by TLC General Counsel Marty Jones