From Fort Worth Star-Telegram, By Bill Hanna, February 24, 2012 – In a landmark ruling that could affect the use and control of groundwater in Texas, the state Supreme Court ruled Friday that property owners have a vested interest in the water under their land.
The case, Edwards Aquifer Authority vs. Day, challenged the San Antonio-area aquifer authority’s right to issue an irrigation permit that limited how much water two farmers could use on their property.
Landowner groups such as the Texas and Southwestern Cattle Raisers Association hailed the ruling, saying it means property owners now know that they will have a reliable source of water.
“We think this is a clear-cut victory for property owners,” said Joe Parker, president of the Texas and Southwestern Cattle Raisers Association. “This gives us a clear direction both now and in the future.”
But environmental groups such as the Sierra Club criticized the decision and said it could undermine the state’s system of groundwater districts and lead to more litigation.
“The state Supreme Court has reached an unwarranted legal determination in saying that a landowner owns the groundwater in place beneath his or her property rather than holding that a landowner has only the right to capture that groundwater subject to other important public policy purposes,” said Ken Kramer, president of the Lone Star Chapter of the Sierra Club.
“The court has done a huge disservice to everyone who has been working for proper management of the groundwater resources needed for our state’s people and our environment,” Kramer added.
Tom Mason of the Austin law firm Graves, Dougherty, Hearon & Moody said the ruling is likely to lead to more litigation.
“Landowners with wells may be encouraged by this and want to challenge groundwater district regulations, particularly in the Edwards Aquifer Authority,” he said. And as the courts consider the implications of the ruling, groundwater districts “may be a little less inclined to regulate as vigorously as before,” Mason said.
The case dates to 1996 when two farmers, Burrell Day, who has died, and Joel McDaniel sought a permit to pump from the Edwards Aquifer to grow crops south of San Antonio.
But the two farmers could not show “historical use,” which is how permits are issued. Instead of granting them the 700 acre-feet of water, the permit gave them rights to 14 acre-feet.
The farmers argued that the water authority deprived them of their property without compensation.
The court ruled that employing historical use as standard for issuing permits deviates from 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,” says the opinion, written by Justice Nathan Hecht.
The case has been closely watched in Central Texas, especially in San Antonio, where groundwater is the primary water source. But it could also affect areas including Parker, Wise and Johnson counties, where many homeowners rely on groundwater.
The cattle raisers say they still support groundwater districts and don’t believe that this ruling will change how groundwater is managed.
“All along, the Texas and Southwestern Cattle Raisers have said groundwater districts play a very important role managing the state’s groundwater,” said Parker, the group’s president, who lives in Byers near Wichita Falls.
“We believe in local control and that the local water conservation district should be making those decisions and not somebody at the state, or heaven forbid, the federal level,” Parker said.
But the Sierra Club’s Kramer said the Edwards Aquifer Authority came into existence because of a Sierra Club lawsuit, and he did not rule out a federal legal challenge, especially if the ruling prevents limits on groundwater use.
This report includes material from The Texas Tribune.
Bill Hanna, 817-390-7698