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Back Page - March 2011



By Ben Love

Who Owns the Water Under Your Land?

The full text of this editorial by Ben Love, TSCRA honorary director and past chair of the Natural Resources Committee, Marathon, appeared in the Feb. 3, 2011, issue of Livestock Weekly. With their permission, we reprint excerpts here.

Ask any rural Texas landowner, "Who owns the water under your land?", and the answer will be a resounding, "I do." Some groundwater conservation districts (GCDs) have taken the position that landowners do not own the groundwater under their land.

The 1904 case of Houston & Central Texas Railway Co. v. East, the Texas Supreme Court established the Absolute Ownership Rule of groundwater ownership.

In East, the Court reasoned that the owner of the land was the "absolute owner of the soil and percolating water (groundwater), which is a part of, and not different from the soil, and that groundwater is the same as the land and cannot be distinguished in law from the soil." The East case has never been overturned.

There are at least 98 GCDs in Texas. Most are doing exactly what they were created to do — regulate to promote management and conservation of groundwater within their district boundary

Unfortunately, some GCDs are concerned about the absence of a clear-cut bright line defining how far they can go in the regulation of groundwater before becoming liable to landowners for money damages for going too far.

The vested ownership of groundwater in place forms the basis of their concerns, and absent such vested ownership rights, there would be no limit to the extent they could regulate without liability to anyone.

A new, untested theory has been put forth which could clear the way for GCDs to be absolved of all liability for over-regulating groundwater. They don't deny that landowners have ownership rights in groundwater, but they creatively contend that ownership vests only when the water is produced on the surface under the Rule of Capture, not when the water is in place under the surface.

This novel theory, if adopted, would essentially remove all hurdles for complete control of groundwater by GCDs.

On Jan. 12, State Sen. Troy Fraser (Rep., Horseshoe Bay) filed Senate Bill (SB) 332, which would clarify the ownership of Texas groundwater by the surface owner.

SB 332 states that landowners have a vested ownership interest in the groundwater beneath their property while recognizing the role locally elected GCDs play in helping manage and conserve it.

Sen. Fraser noted that "a vested ownership interest is a property right a landowner can legally protect and the right to produce groundwater is a property right that is exclusively the landowner's. No one else can come onto private property, drill a well, and start pumping groundwater. If someone were to attempt it, the landowner could legally stop them."

The purpose of SB 332 is to clarify this in the Texas Water Code.

The opposition to SB 332 is fierce, with some GCDs claiming its passage would herald a flood of regulatory "takings" lawsuits against groundwater districts.

The fear of regulatory takings litigation underlies the theory that no one owns groundwater. If no one owns it, then no one can maintain a cause of action against any water authority for compensatory money damages as a result of over-regulating it.

Nothing contained in SB 332 can be remotely construed to alter existing Texas law with respect to regulatory takings claims and in no way denies groundwater districts the right to reasonably regulate groundwater.

What is a "taking"? A taking may occur as a result of government occupation of private property or as a result of over-regulation of private property. Several factors are considered to determine whether a taking has occurred, including whether the regulation has destroyed all economically viable use of the property, if it unreasonably interferes with the use and enjoyment of the property, the character of the regulatory action and whether the regulation substantially advances legitimate state interests.

Perhaps the greatest practical factor shielding groundwater districts from unwarranted takings claims is found in Section 36.066(g) of the Texas Water Code. This Section provides that if the groundwater district prevails in a suit, the claimant may be liable for all the district's attorney fees, expert witness fees, costs of court, and other costs. This is not a gamble to be taken lightly by a claimant.

Groundwater ownership is often confused with the Texas Rule of Capture. In a recent appellate court decision, the San Antonio Court of Appeals affirmed that the Rule of Capture is "a doctrine of non-liability for drainage, not a rule of property."

It means a landowner whose property is being drained of groundwater by his neighbor has no judicial remedy, and contrary to popular belief, it does not mean that the landowner does not own the groundwater beneath his land until he produces it at the surface.

If landowners expect the answer to "Who owns the water under your land…" to continue to be a resounding "I do!", urge your state senator and representative to support SB 332. 

"Back Page - Who Owns the Water Under Your Land?" is from the March 2011 issue of The Cattleman magazine.