Texas Supreme Court ruling on groundwater a victory for property owners

Star-Telegram archives/Joyce Marshall –

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.

x

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

billhanna@star-telegram.com

Twitter: @fwhanna

10 responses

  1. […] Texas Supreme Court ruling on groundwater a victory for property owners « Parker County Blog. Share this:FacebookLinkedInPrintEmailMoreRedditTwitterLike this:LikeBe the first to like this […]

  2. “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.”

    So…”what’n the Sam Hill” would give the corporate Federal D.C. Guvmint jurisdiction to make decisions about ground water under the State of Texas?

    In their totalitarian minds…the same thing that gives them jurisdiction over every other minute detail of your lives…cause they say so.

    It’s long past time to end the madness…secede from the USS Titanic…it’s going down.

    It’s time to sink or swim.

    1. Senator-Blutarksy

      What ” gives DC” jurisdiction is a flacid, bootlicking crowd in Austin, from the Gov down to the lowly area State Reps, exercising somnabulism.

      Just like the county commissioners courts everywhere too……..say much in opposition, much less outright defiance by 10th amendment objections and filings, and “federal funds” disappear.

      Our “public servants” end up being just rubberstamp toadies instead of meaningful representatives of the will of the people. Just like last session, when Dewhurst effectively gutted opposition to TSA rape at the airports. Dew is the ultimate DC insider working to destroy any meaningful opposition to DC down there – and he yanks the strings of his personal puppet, Rick Perry

  3. Brubaker you are correct, they have already started looking at the ways to own all minerals under all the land in the US. Mineral rights will go away and property rights will be restricted even more so that they will have the right to use the surface rights to access the mineral regardless of damage or depletion. SPREAD THE WEALTH AROUND A LITTLE.

  4. I’m not convinced this is a good thing for Texas in the long run. As a landowner with wells, I would gladly support some stronger groundwater regulation….mainly to ensure that some still exists for my children and grandchildren. I value this water like gold. Without it, my livelihood is devastated.

    But, my own experience with “Texas Landowners” who are the strongest supporters of this, aren’t even Texans. Just California developers who now happen to be “landowners”. They drill bigger and deeper wells to use for landscape water in their new high density neighborhood developments. Drawing down the water once available to all the surrounding landowners.

    This decision may be good for SOME “landowners”, but it’s not good for Texans.

  5. Jeb, Why don’t you put your well on line with everyone who feels the way you do and start a coop that the members with wells are no can pump to a central location and distribute among the many. Of course this will save the water table because the elected board will decide how much water should be allowed to be used and for what purpose (Homeowner assn. now water well owner assn.) sounds as though you have given a lot of thought to this and are unable to control your neighbors useage and should get right on construction of this terminal situation solution. Oh, by the way, while you are at it wonder what the distribution cost will be I’m sure a cheap price to pay for the loss of your property rights and your personal rights to decide for yourself how to use your assets. Good luck, Texans are depending on you to exert more controls good for the general population whether it is against individual rights or not.

    1. Stan, if I had access to municipal water, my worries about availability would be much less (like most of the population).But, I’m many miles from the nearest available water main.

      I think the major issue out there is the overall lack of understand by politicians and the general public about the science of groundwater. That the rule of capture is being applied to groundwater law is just ludicrous. Groundwater in major aquifers acts nothing like petroleum and gas reserves. For one, its rather life sustaining, much like the air we breathe. But, it also flows and can travel great distances. The fact that one landowner could install a super-well that drains a five county region and leaves everyone else ‘high and dry” seems wrong somehow.

      I generally see what you mean, but I just look at it a little differently. Having groundwater sucked out from underneath me feels like the loss of a property right. Or the loss of property, period…. Theft!

      I agree with most that government isn’t the answer. Within one generation, our state’s inability to plan ahead will be obvious. Small farms and ranches will be one of the big losers here. Just watch.

  6. Thank God the landowners won!!! Don’t forget these districts were all started by our own Phil King’s legislation. The other side to this is Sen Greg Estes heads up Natural Resources and he helped this turn into this huge bureaucratic nightmare. Phil did try to cut it way back but got 0 help from Greg Estes. By the way Greg Estes is up for re-election and I will be voting for his opponent. This is what government does it takes away rights and never offers a solution to fix it which is SURFACE WATER. Never ever write legislation under duress get the facts first.

    1. Senator-Blutarksy

      a little known factoid – at least one time in his life, Lyndon Johnson made a CORRECT statement.

      “You do not examine legislation in the light of the
      benefits it will convey if properly administered, but
      in the light of the wrongs it would do and the harms
      it would cause if improperly administered.”

      ~~ Lyndon B. Johnson ~~

      Not the he ever practiced his own little creed, but………

      I have sent that to Estes & King repeatedly on their early toll road support and other nauseous issues, but it seems to fall on deaf ears (never mind to the cretins in DC- Granger, Hutchinson, Cornyn). They all have “agendas” and it is rarely to the public benefit, but to their corporate paymasters and string-pullers.

      Democracy is the theory that the common people know what they want, and deserve to get it good and hard.
      H. L. Mencken

      It is inaccurate to say that I hate everything. I am strongly in favor of common sense, common honesty, and common decency. This makes me forever ineligible for public office.
      H. L. Mencken

%d bloggers like this: