Texas Landowners' Groundwater Rights Revisited
The Edwards Aquifer case is sure to be a hot legal topic in Texas this year. The landmark decision by the Texas Supreme Court a few weeks ago will probably effect countless Texas landowners. Joel McDaniel, one of the plaintiffs in the Edwards Aquifer case, noted that “this changes everything for everyone who owns a well.”
I discussed this important decision in my March 5, 2012 article (that you can access here), but there remains a lot to be discussed about this opinion, particularly because the Court's decision raised some questions in addition to answering others. Readers may recall that the Court held that landowners own the groundwater under their land, thus treating groundwater similarly to subterranean minerals, such as oil and gas. However, Judge Hecht's opinion for the Court notes that regulation of groundwater is still within the state’s power. He noted that in many areas of Texas, including where the Edwards Aquifer is located, the demand for water is greater than the available supply. However, the decision goes on to say that although the State of Texas is empowered to regulate, when a landowner believes that the regulation is unreasonable, they can take the issue to the courts.
In the wake of this decision, it is still unclear how the San Antonio area will be affected. The water for that area is controlled by the regulations of the Edwards Aquifer Authority (EAA). The chairwoman of the EAA’s Board of Directors, Luana Buckner, said that this decision left the Authority with more questions than answers about how to move forward. She noted that the decision confirmed that the EAA followed the correct procedures, as set out in the Edwards Aquifer Authority Act. However, she believes that the decision gives no guidance as to whether following the correct procedures to limit water pumping always requires the EAA to compensate landowners for limiting their rights. The Supreme Court of Texas left it up to a trial court to determine whether Mr. McDaniel, the sole surviving Plaintiff in the case, should receive compensation. Supporters of the Plaintiff’s position believe that, regardless of the how the case is finally resolved in the lower court, the Texas Supreme Court’s confirmation that landowners can turn to the courts to adjudicate these groundwater disputes is incredibly important.
Texas law requires that the regulations be reasonable. A spokesperson for the Texas Farm Bureau, an organization that supports the decision in Edwards Aquifer, says of the EAA: “They are basically going to have to make the decision that any government agency has to make: is this a reasonable regulation or does it go too far?” The EAA has voiced concern that with this new ability to bring groundwater disputes to court, there will be an inundation of lawsuits from landowners unhappy that they cannot pump an unlimited amount of water. Judge Hecht addressed this argument in the decision, and stated that the burden on these government agencies does not override the takings clause of the Constitution.
The ultimate ramifications of this landmark Texas property rights case may not be fully understood until the issues in this kind of situation are addressed by further legislation or litigation.
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