In a landmark ruling on groundwater rights today, the Texas Supreme Court ruled that the Edwards Aquifer Authority must compensate ranchers Burrell Day and Joel McDaniel for regulations that controlled the amount of water the two could pump from wells on their land. While the decision is not surprising, given the state’s history of protecting landowners, it does put attempts to protect and manage groundwater at risk and will likely result in a flood of new litigation.
Here are the key bullet points from the majority opinion:
"...we held long ago that oil and gas are owned in place, and we find no reason to treat groundwater differently."
"...last year, the Legislature amended section 36.002 S.B. 332, to set out its fuller understanding of the matter...By ownership of groundwater as real property, the Legislature appears to mean ownership in place."
"Groundwater rights are property rights subject to constitutional protection, whatever difficulties may lie in determining adequate compensation for a taking."
"Today we have decided that landowners do have a constitutionally compensable interest in groundwater..."
What this means, though, is that aquifers and other groundwater features are not treated as a public resource, and our limited stocks of groundwater, which provide drinking water and economic benefits to millions of Texans, are now subject to the whims of landowners who happen to own property over these features.
As Tom Mason, former head of LCRA, told State Impact Texas, “there probably will be a lot more litigation until this gets sorted out. It's unfortunate, but that's likely what's happening. And that often occurs when we have a major Supreme Court decision like this.”
Ken Kramer, Director of the Lonestar Chapter of the Sierra Club, issued a statement strongly disagreeing with the decision (emphasis mine):
The decision creates uncertainty about how state, regional, and local entities will now be able to protect groundwater resources if those entities are potentially subject to takings claims for every action they take to manage groundwater wisely. 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. 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.
Cattle ranchers, of course, applauded the decision. Joe Parker, President of the Texas & Southwestern Cattle Raisers Association told Texas Insider “this opinion is a victory for Texas landowners and will be important for generations to come.”
While landowners have won a temporary victory, the continuing drought will certainly lead to more litigation about groundwater ownership.