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Texas high court confirms ownership of groundwater

By Lauren Flake Executive Director Texas Landowner

Jimmy Gaines, president of Texas Landowners Council, last week 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."

In its ruling, 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.

Additionally, 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 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," he noted. "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," he said. "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 added, "we'll be watching."