Texas groundwater rights by Billy B. BrownBy Billy B. Brown

Most landowners have a strong belief that they have a Texas private property right to the groundwater beneath their land.  They believe that the Rule of Capture gives them a property right to drill a well and pump groundwater for their use.  Unfortunately, this belief is being challenged at the Texas Supreme Court and the halls of the State Capitol.

The Edwards Aquifer Authority, some groundwater conservation districts (maybe your district), and some historic groundwater users are saying the landowner does not have a private property right in Texas to the groundwater beneath their land.  They say you only have a right to the groundwater you capture and control above the surface.  Why would they make this argument?  Because if you don’t have a property right, then your access to the groundwater can be limited or completely taken away without you having any legal right to stop them.

Your property rights as a landowner are legally “vested.”  So, if groundwater is considered to be a property right that you have as a landowner, it is a “vested” right—one that is protected from unfair regulation and cannot be taken from you without compensation.

Does your groundwater district believe that you have a property right in the groundwater beneath your land?

This is a very important question.  It is the difference in how far your district believes it may legally go in restricting your right to groundwater.  It is the difference in whether your district is paying attorneys to file legal briefs with the Texas Supreme Court saying you don’t have a property right in groundwater.  It is the difference in whether or not the lobbyist for your district is in Austin opposing legislation to protect your groundwater rights.  Is your district for or against you?

Some districts will say that they believe the landowner has a right to the groundwater, but they don’t know if it is a “vested” right.  They are completely missing the point.  Property rights are “vested” rights.  Landowners don’t have property rights that aren’t vested.  So, either the district believes you have a “vested” right to groundwater as the landowner or they don’t. Legally, there is no “in-between.”

Some districts also say they fear that they won’t be able to regulate groundwater if the landowner has a “vested” right.  They seem to believe that “vested” rights are some sort of “super” property rights—that if it is restricted, then the landowner must be compensated.  It is very troubling if districts believe this.  It makes one wonder if these local districts have the knowledge and ability to exercise the extensive regulatory authority given to them by the legislature.

Why would a property right in groundwater be superior to all the other property rights of a landowner?  Are there any other property rights that can’t be regulated?  NO!  Then why would districts believe that they can’t continue to regulate groundwater as a “vested” property right?

Cities, state agencies, and federal agencies certainly don’t seem to have any doubt about their authority to regulate a landowner’s property rights.  Cities have extensive power to restrict the use of private property.  All of these rights are “vested.”  Yet, cities have no problem in enforcing zoning ordinances, building codes, etc.  The Railroad Commission of Texas certainly doesn’t have any issues with regulating the “vested” rights to oil and gas.

So, if you aren’t sure whether or not your local district believes you have a legal right to the groundwater beneath your land, then you may want to ask the question.  In fact, it is your obligation to ask the question.  These districts are accountable to you.  You have a right to know if they are working against your rights in court or in the Capitol.

In fact, there are a few groundwater conservation districts that are willing to support landowners’ private property rights in Texas. The water beneath my land falls under the authority of the Panhandle Groundwater Conservation District. They have adopted a resolution supporting the landowner’s vested right to groundwater. Unfortunately, some districts have refused.  Is your district one of them?  Landowners voted to create these districts to protect their groundwater rights. Does your district believe you have rights? There’s one way to find out. Ask them.

Go to www.groundwaterownership.com for more information.

Billy B. Brown is secretary-treasurer of the Texas Farm Bureau and chairman of the organization’s Natural Resources Committee.

Visit the Texas Farm Bureau website at www.txfb.org .
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One Response to “Does your GCD support your Texas private property right to groundwater?”

  1. Charles Gaddy says:

    Gentlemen,
    We are the owners of the land and the care takers. The people that we have elected to office most of them do not own a farm or a ranch and do not under stand that we farms and rancher take care of what we have and that water is a source that we have all taken care of and use carefully. The big business, city,s want to take our right to use and take care of our rights to care for our land and the animals and crops we produce. Our elected State Congressmen and State Senators need to understand that that these local water districts are not in favor of the farmer and ranchers in the state. Our grandfathers and grandmothers,parents did pretty good with out and local water district telling them what to do. Our state officials need to tell these people they are not needed to tell us how to conserve out resources on our land and tell big business and cities that do not have rights over we the land owners.

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