Landowners Win Water
by: Laurie Johnson, February 24, 2012 4:02:00 pm
A Texas Supreme Court case that has been working its way through the courts for years comes down in favor of property owners.
The ruling is in the case of Edwards Aquifer vs. Day, in which a Texas farmer sued the water authority for rights to pump water on his land.
The water authority regulates the use of water and denied Burrell Day a permit to put a well on his 350-acre ranch and pump additional water
University of Houston Law Professor Jacqueline Weaver says the court ruled in favor of landowners, basing the decision on previous oil and gas cases.
"If you have a tract of land anywhere in Texas and you own both the surface and the minerals, you can produce the oil and gas underneath your tract. And the question was whether groundwater, which is also underneath your tract, follows the same sort of — it's called the Absolute Ownership Rule — that a landowner can absolutely own the groundwater in these aquifers the way they own oil and gas underneath their land."
But here's the tricky part.
While the court says landowners do have groundwater rights, it also says the state still has the right to regulate water use. The question that's still up in the air is whether the state has to compensate a landowner for limiting their access to groundwater.
"It's pretty clear that the state can regulate his use and keep him at the small amount that they've given him. The question really is do the taxpayers, we the rest of the people in the State of Texas, have to compensate him?"
That issue, which falls under the state's "takings" rule, hasn't been decided. Instead the Texas Supreme Court sidestepped the question, sending it back to the lower court.
Environmental groups, including the Sierra Club, are concerned the ruling will make water authorities more skittish about enforcing water use regulations and that more lawsuits will result.