Texas landowners won a historic victory on Friday for the fundamental private property right to the groundwater “in place” below their land. In the ruling, Edward’s Aquifer Authority v. Day, the Texas Supreme Court decided that landowners have a real private property right in groundwater protected from takings without compensation under Article 1, section 17(a) of the Texas constitution.
In this case, landowners Burrell Day and Joel McDaniel claimed that regulation by the Edward’s Aquifer Authority (EAA) had so deprived them of their use of groundwater that the EAA’s restriction was a compensable taking of private property protected by the Texas Constitution. Rejecting the claims of the EAA, the Court agreed with the landowners: “Groundwater rights are property rights subject to constitutional protection, whatever difficulties may lie in determining adequate compensation for a taking.” The Court remanded the case to the District Court to factually determine whether Day and McDaniel were constitutionally entitled to compensation.
This landmark decision addresses many contentious issues now surrounding groundwater. While acknowledging that private groundwater rights are fully compatible with regulation of groundwater, the Supreme Court explained that under the law landowners own groundwater just as they own the oil and gas below the surface of their property. “In our state, the landowner is regarded as having absolute title in severalty to the oil and gas in place below his land. The only qualification is that it must be considered in connection with the law of capture and is subject to police regulation,” quoting precedent. “We now hold that this correctly states the common law regarding the ownership of groundwater in place.”
The 49 page ruling significantly resolves longstanding questions about the scope of landowners’ groundwater rights, the rule of capture, regulatory authority and constitutional protection of private property rights. Importantly, the Court notes that the financial burden of upholding the landowners’ constitutionally protected ownership of groundwater is no excuse for denial of those rights recognized through more than a century of Texas law. The Court’s decision clarifies and extends the meaning of legislation passed in the recent 82nd session to re-affirm landowners’ groundwater rights.
Questions about the scope of a landowner’s ownership of groundwater have become increasingly contentious in the last ten years as a result of the rapid growth of regulation by local groundwater districts, new state law to establish long-term aquifer management, and the increasing need to develop groundwater.
Some groundwater districts and a few influential voices in Austin have contended that the landowner’s right is limited to the rule of capture. This view maintains that ownership of groundwater only vests upon capture or possession of the groundwater. The Texas Supreme Court, however, concluded that ownership of groundwater is like ownership of oil and gas. Vested property right in the surface extends – unless otherwise severed- to the groundwater, oil, gas, minerals, etc. residing “in place” below the surface. Capture, possession or use of those underground resources do not define the scope of the groundwater right but are corollaries of the right.
Thank you to the Texas Supreme Court for re-affirming that clear private property rights provide the most effective path for achieving not only private goals but also the public goals for a plentiful water supply.
-Kathleen Hartnett White