By Jay Evans, Chair, TSCRA Natural Resources and Environment Committee
In 1904, the Texas Supreme Court ruled that landowners could pump all of the groundwater they want from under their land without being held liable to others for drainage.
This ruling confirmed the “rule of capture” and established that landowners have an ownership interest in the groundwater beneath their land. After all, how could landowners have an unlimited right to produce something that wasn’t solely theirs to begin with?
Unfortunately, since 1904, ownership of groundwater has continued to be an issue and ultimately challenged.
The regulation and management of groundwater has increased as the Texas Legislature and local landowners in many areas of Texas have created groundwater conservation districts. These districts were designed to ensure that landowners’ ownership interests in groundwater are protected at the local level. These districts were not created and should not be used to take property rights away from landowners.
Similar to groundwater conservation districts, groundwater is also regulated and managed by groups like the Edwards Aquifer Authority (EAA).
In these regulated areas, the “rule of capture” has in effect been modified. Although there is an exemption for domestic and livestock use, everyone else wishing to drill a well and pump groundwater must get a permit from their local district or authority.
Local control versus regional or state control of groundwater continues to be a debate. Like many other property right issues, when property rights meet regulation, there needs to be a balance or else the constitutional rights afforded to landowners can be taken without compensation.
Case in point: Mr. Burrell Day and Mr. Joel McDaniel needed a permit from the EAA for their agriculture operation and applied for a permit. After years of delay the permit was granted, but only for a miniscule amount of the groundwater needed. The EAA argued that they could regulate however they wanted because Day and McDaniel did not have any ownership interest in the groundwater. Day and McDaniel filed a takings claim against the EAA in court.
In 2010, the case of the EAA v. Burrell Day and Joel McDaniel was argued in front of the Texas Supreme Court.
The Day/McDaniel case was of great concern to the Texas and Southwestern Cattle Raisers Association (TSCRA), so we joined with other landowner groups to submit a brief in the case.
Further, our landowner group coalition helped to craft what would become Senate Bill 332, which affirmed that groundwater is the real property of the landowner. This legislation passed during the 2011 session of the Texas Legislature and was signed by the Governor. It was a major victory for landowners.
In 2012, the Texas Supreme Court referred to Senate Bill 332 when they issued their opinion in favor of the landowners in the Day/McDaniel case. They stated that “groundwater rights are property rights subject to constitutional protection, whatever difficulties may lie in determining adequate compensation for a taking.”
As the population in Texas continues to grow at a fast pace, many are looking to tap into a new source of groundwater that is brackish. Brackish groundwater is generally not potable. However, with desalinization technology, this groundwater could help meet the growing water needs of our state. TSCRA supports these efforts.
But, some want to legislatively create a permitting system for brackish groundwater that is separate from fresh groundwater. TSCRA does not support this and believes it only complicates the groundwater ownership rights that are already in place and creates many unnecessary legal issues.
TSCRA stands by the fact that groundwater is groundwater. If a water resource lies beneath a landowner’s property- they own the water, regardless of whether it is fresh or brackish. The Texas Constitution and now more than 100 years of case law support this position, including the clear opinion that the Texas Supreme Court issued in 2012.
TSCRA will continue to be active in groundwater ownership issues, especially as the Texas Legislature begins to meet in January 2015. TSCRA has worked hard to protect landowners’ private property rights for over 137 years, and will continue to do so for future generations.
Jay Evans serves as President of Jay Evans Company, a ranch and resource management organization that provides services to ranchers and landowners in Texas as well as operating his own stocker program. Jay currently serves as Chair of the TSCRA Natural Resources and Environment Committee and is a member of the TSCRA Board of Directors.