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Commentary: Texas Policymakers Must Respect Private Groundwater Rights

In a recent commentary in the Burleson Star, Billy Howe, the state legislative director for the Texas Farm Bureau, argues that proponents of groundwater regulation need to respect the rights of Texas landowners.  Howe points to the Texas Supreme Court, which has ruled that landowners have an “absolute right” to groundwater under their property.  As a result, regulations on groundwater use constitute a “takings,” which means property owners are entitled to compensation for hardship caused by regulations.  To avoid endless litigation, Howe says, policymakers must recognize this legal constraint, just as the state’s oil and gas regulators have.

The Texas court ruling Howe references is likely Edwards Aquifer Authority v. Day, a 2012 case in which a private landowner challenged a local groundwater agency, the Edwards Aquifer Authority (EAA). In that case, the Court formally extended the common law principle of absolute title to groundwater.  The Court based this decision on its finding that there is no substantive difference between groundwater and oil and gas, to which the absolute ownership principle has long been applied in Texas.  The state legislation that created the EAA requires it to give compensation for takings.

The Day ruling has led to at least one successful challenge to groundwater regulation.  In Edwards Aquifer Authority v. Bragg, a Texas appeals court upheld a lower court ruling requiring the EAA to compensate a family for a regulatory taking when the EAA reduced the amount of water the family was allowed to pump on its property.

The result of this precedent is a legal framework that places few restrictions on landowners while placing considerable restrictions on water managers.  Other western states have struck different balances.  According to UC Davis, California’s groundwater law is, like Texas,’ mostly the result of court rulings.  Unlike Texas, though, the California courts abandoned the “absolute ownership” principle early in the 1900s.  Instead, landowners have “overlying rights,” which limits the amount of water a person can withdraw to what is “reasonable” in light of the total demand in the basin.  While this approach seems somewhat more conducive to regulation, California’s new groundwater law has drawn criticism from many farmers who believe it violates their property rights.

At the opposite extreme from Texas is Oregon, where water is publicly owned.  As a result, any new water use requires approval by the state Water Resources Department.

As these examples show, a state’s legal framework can have a significant impact on how state officials are empowered to tackle groundwater management.

Written by Stratecon Staff