Texas groundwater case deals with question of underground trespass

The Texas Supreme Court has heard arguments and is now contemplating a case that deals with whether and how far below ground property lines extend.  The case stems from groundwater contamination claims against an injection well operator.

FPL Farming, a rice farm near the site of the injection well, claims that waste from injection well, which plunges 8,000 feet below the surface, is contaminating their groundwater—and that this contamination constitutes a trespass that warrants compensation.

Attorneys presented arguments ranging from questions of whether there needs to be actual damage to make the trespassing claim to whether the water source has actually been contaminated.  In addition to those arguments, justices are weighing whether the trespass right should be considered absolute or should they engage an inquiry because of the potential impact on the oil and gas industry, which has such a large impact on the state.

In Edwards Aquifer Authority v. Day, the court held that groundwater rights are private property—but they have only dealt with the trespass question in a mineral rights case, where they ruled in favor of the oil and gas industry.

A number of amicus briefs have been filed in the case, Environmental Processing Systems, L.C. v.  FPL Farming Ltd., most recently from the Texas Farm Bureau.

 Written by Marta Weismann