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2012-03-08

Texas Supreme Court rules on groundwater ownership

By Carolyn B. Edwards BCC Staff Writer

The Texas Supreme Court ruled Friday, Feb. 24, that landowners have a vested interest in the water under their land. The long range effects of the ruling are still very unclear.

Edwards Aquifer Authority v Day challenged the EAA's right to issue an irrigation permit that limited how much water two farmers, Burrell Day and Joel McDaniel, could use on their property.

When Day and McDaniel could not show historical use data to justify a permit pumping increase, the EAA refused their request. They then contended in court that the authority had deprived them of their property without compensation.

The Supreme Court's ruling said that employing historical use as a standard for issuing permits violates the rules of the Texas Water Code.

"The Court reasons that groundwater in place is owned by the landowner on the basis of oil and gas law," said the opinion, written by Justice Nathan Hecht.

According to Mose Buchele, StateImpact Texas, "The case clearly established two things. First, that landowners legally own the groundwater underneath their land, and second, that landowners may be owed compensation if state or local regulations go too far in limiting the amount of groundwater landowners can pull."

Buchele goes on to conclude, "If groundwater districts fear that their regulations will provoke costly lawsuits, or expensive restitution to landowners, they'll be less likely to regulate how much of the water under their land property owners can use."

Dave Mauk, general manager of the Bandera County River Authority and Groundwater District (BCRAGD), said the ruling will no doubt lead to a lot of litigation, although he does not expect it to effect Bandera County too much.

"We're not as restrictive as some of the other districts," said Mauk, "and the Edwards Aquifer Authority apparently based their permits on historical data."

Mauk said that as he understood the ruling, "water districts can't restrict permits based on the fact that the well owner has no historical data."

Andrew Sansom of the River Systems Institute indicated the ruling would put pressure on groundwater districts. "These little groundwater conservation districts are already underfunded, so I can't imagine that they won't put their heads in the ground when faced with the possibility that they will have to compensate landowners if they curtail their use of water," says Andrew Sansom of the River Systems Institute in Buchele's interview.

However, Jay Evans, with the Texas and Southwestern Cattle Raisers Association doesn't anticipate a huge increase in litigation. "It's not that easy. You don't just pick up the phone and say 'Send me a check,'" said Evans. "And the expense that the litigation costs [is great], so I think a person would have to be pretty sure that they'd been damaged."

A Texas law that says plaintiffs have to pay the damages to groundwater districts if their case is without merit will also discourage litigation, Evans added.

Instead, "agricultural groups believe that the ruling will give them a stronger hand as Texas begins to implement long term water planning," Buchele's article concluded.

Mauk acknowledged that the ruling protects landowners' rights, "and that's what we're all about here in Texas. BCRAGD works to balance landowner's rights with protection of our water resources."