Billy Howe, Texas Farm Bureau Legislative DirectorBy Billy Howe
TFB State Legislative Director

It is often said that there are hundreds of ways to kill a bill, but only one way to pass it.

One of the most effective means to polish off legislation is to cause enough confusion that time runs out on it. That is the tactic currently being employed by opponents of SB 332 by Sen. Troy Fraser, the bill to reaffirm that landowners have a constitutionally-protected right to the groundwater beneath their land.

Although the Texas Supreme Court has said repeatedly—at least four times since 1904—that the landowner “owns” the groundwater under “his own land,” opponents of SB 332 continue to claim that groundwater cannot be “owned” by the landowner until it is actually “reduced to possession.” Because groundwater can move from property to property, opponents claim the landowner can’t own it beneath the surface. Those claims have been rejected by the Texas Supreme Court since 1915.  The court has ruled that if groundwater is in your soil, you own it while it is there. You have a right to capture it. And, that right to capture what you own is a vested property right.

Even though both the U.S. and Texas Supreme courts have repeatedly ruled for over 100 years that government can extensively regulate “vested” property rights, opponents continue to claim that SB 332 will prevent regulation of groundwater.  However, the “vested” property right in oil and gas hasn’t prevented the Railroad Commission from requiring permits to drill wells, spacing of wells, or limiting the amount of oil and gas that can be produced from each well.  Each of these requirements used by the Railroad Commission is also used by groundwater conservation districts. Why can the Railroad Commission regulate vested property rights, but groundwater conservation districts can’t?

Opponents say that they fear lawsuits will bankrupt the districts. If landowners can bankrupt local government by filing “takings” lawsuits, then why isn’t every city and town in Texas bankrupt?  They all restrict landowners’ vested property rights.  Shouldn’t there be a “flood” of litigation against them?

It is expensive and difficult to sue government for a taking, so landowners don’t. Ninety percent of the time, the court rules against the landowner.  That is why there is no “flood” of takings claims against government regulation. Groundwater districts would be no different. Also, groundwater districts have a protection under the law that other government entities don’t. If you sue them and lose, you pay their attorney’s fees. That is a one-way protection.  If the landowner wins, the district doesn’t pay his attorney’s fees.

Texas Farm Bureau will continue to work hard to clarify the “ownership and rights” of landowners in the groundwater debate by supporting SB 332. If the opposition is successful with their focus on “unintended consequences,” we know what the real outcome will be—landowners will be in jeopardy of losing their right to the groundwater under their land.

Opponents of SB 332 have asked for examples of where landowners will be denied their right to groundwater. If anyone needs proof, all they have to do is look at the list of groundwater districts, groundwater district lawyers, and “historic” users who have testified against SB 332. If there wasn’t a problem to be fixed, then why would they be opposed to recognizing that landowners have a constitutionally-protected property right in the groundwater beneath their land?

SB 332 answered its critics and passed the Texas Senate by a 28-3 margin. We will work hard to ensure its success as it winds its way through the House.

Visit the Texas Farm Bureau website at www.txfb.org .
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11 Responses to “Groundwater rights bill threatened”

  1. Mr. Howe’s statment that opponents of SB 332 are making claims that groudnwater cannot be "owned" by the landowner is utterly false. I attended Natural Resource Committee hearings on both the House and Senate side and never heard one time anyone against the bill say that the landowner doesn’t own the water. This bill is completely unnecessary since ownership of water has already been established. By introducing the term ‘vested’ into the equation, SB 332 if passed, could subject Groundwater District’s to countless takings lawsuits and diminish their capacity to protect the aquifer from abuse.

  2. Bill Richter says:

    I oppose SB 332 "vesting" because…..

    Air and groundwater are identical in nature in that they both flow from place to place and are necessary to sustain life. The majority of air and groundwater is over and under private real property, therefore and a vested property right in groundwater or air would allow real property owners to have control over the essentials of life, that have free flowed, from place to place, for the common benefit of all humanity since creation.

    Groundwater and air is not quantifiable to the molecule, nor can it be measured in metes-and-bounds as is real property with a solid strata of minerals such as soil, sand, and rock. Air and Groundwater are both transient fluids and fill the spaces above and below real property but are not a permanent part of the real property because they are not quantifiable. Groundwater will be in a different place at a later point in time due to pumping and natural flows.

    With vesting, there is insufficient municipally owned property and incorporated private acreage to (correlatively) supply groundwater to municipal citizens. Vesting would tend to create a monopoly of large real property owners and further commoditize groundwater, which could have a higher value in another country or a state other than Texas. Due to the transient nature of groundwater the legislature has rightfully determined that, locally controlled Groundwater Conservation Districts are the best method of managing groundwater. Vesting would only serve to create more vagueness in an already convoluted CH-36 Water Code. Making groundwater more complicated to manage is not good public policy.

  3. Bill Richter says:

    JIM BRASHER is right with his comment…. "This bill is completely unnecessary since ownership of water has already been established".

    Read it right here http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.36.htm#36.002
    in the Water Code.

  4. Billy Howe says:

    Mr. Brasher’s comments provide a perfect example of how the opponents of SB 332 are parsing their words. Mr. Brasher testified against SB 332 in the hearing. His testimony can be viewed at the Texas House of Representatives website.

    My comment was that:

    "opponents of SB 332 continue to claim that groundwater cannot be “owned” by the landowner until it is actually “reduced to possession.”

    Not only are they opposing SB 332 based upon this position, they are also asking the courts to rule that this is the landowner’s "ownership" of groundwater.

    Again, I would like to point out that all of a landowner’s vested property rights associated with their land are extensively regulated without takings claims. So, again, where is the actual proof that SB 332 will prevent the regulation of groundwater?

    What SB 332 will do is give the landowner a constitutional right to access the groundwater under their land under the regulation of the groundwater districts. One restriction this constitutionally protected right places on districts is that it prevents a district from taking away a landowner’s groundwater rights to benefit another landowner. So, this isn’t about groundwater management with the opponents of SB 332. It is about being able to take a landowner’s rights without any legal repercussions. Which the district can do if the landowner doesn’t have a vested property right in the groundwater beneath their land.

  5. Larry J. Doherty says:

    Either "vesting" of groundwater rights is NEW law or its "reaffirmation" is an unnecessary redundancy. "The Law" abhors a redundancy like nature abhors a vacuum – ancient legal maxim. Surely, there must be objective evidence of its legal existence, unless you are obfuscating to hide an "agenda." The Farm Bureau writes Farm & Ranch insurance to protect the "property" of its policy holders that "… ensure that future generations will benefit from your(my) efforts." Assuming arguendo that you are right, please cite me FB’s policy provisions covering the loss of groundwater for which I would have an insurable interest as a matter of law, if it is already vested. And, if not, please do the same for FB’s planned policy extensions if SB 332 becomes law. How much will such a policy protection of my "property" cost? Will the amount of acreage make a difference? If so, why? Flowing groundwater under my property would all belong to me, if I own it. Right?
    In reality, this is legislation to protect the financial interests of rural, large acreage landowners. 95% of Texas is privately owned. 84% of Texas is rural. Less than 1% of the Texas population owns that rural land. "Taking" claims in the past are a "Red Herring" argument to distract the urban interests from seeing that they, as 99% of the taxpayers, will bear the burden of, first, paying enhance condemnation claims, if there is a government taking for their clean drink of water, and then again in higher water bills to get that drink. Perhaps, FB would insure the landowner for that "loss" without a right of subrogation so as to vitiate the burden on taxpayers???
    Thus, the Eminent Domain bill and the Groundwater Vesting bill are conjoined without being in the same piece of legislation where the "agenda" would be obvious: Gouge the taxpayer to pay large landowners when other Texans need a clean drink of water and the State Treasury faces a $27 billion short fall this term. If SB 332 passes, how big will it be next term.
    Now, let’s not just call a lessee a "landowner" in rights under SB 332. Identify them as the pipeliners and want-a-be water sheiks who will reap the benefit of a "vested" interest they have never had. Will FB insure their "property rights" too? Premium costs? Profit picture for FB in this future? What is it?
    FB’s on line home page quoted above talks about "…ensure(ing) that future generations will benefit from your EFFORTS (emphasis added). Does FB know or care that the population of Texans will double to 50 million+ in the next 50 years? During the same time period currently available fresh water resources will DECLINE by 15%. What will be my/your EFFORT during that time? Sell to a pipeliner? Make a fast buck at my neighbors’ expense? Or, add water to the groundwater budget to staunch the natural decline? Good Land Stewardship practices will be needed in the rural areas to accomplish better recharge of our aquifers where it is possible. Where’s the incentive for such conservation? SB 332 is a "takings" compensation measure that exacerbates, not alleviates the real problem: Texas is running out of water. Now, that’s a scary prospect for future generations, especially if the vested water sheik decides to sell to Georgia, New Mexico, etc. The bill opens the door to destroy the future. "Thousands have lived without love, not one without water." W. H. Auden
    Aquifer recharge zones will need protection from development. That will be a taking and with vested water rights the cost will multiply for Texans trying to add water to the supply. Eminent domain changes will further enhance the recovery for those land owners. So, not all rural land owners will be equally enriched. The still smaller number of very large land owners will be the first to raid the treasury. Gov. Perry vetoed the 2007 effort at eminent domain "reform" by scapegoating the benefit he imagined it would bring the hated LAWYERS. With vested water rights to add to their "damages" model, it is even more onerous on the taxpayers. Where is the Governor on these two bills? With the large land owners or the other 99% of Texans who need water supplies protected?
    Lastly, groundwater and surface water come from the same source, RAIN. But, surface water is publicly owned by all Texans, not privately owned by the privileged few. 60% of current water supplies come from groundwater, 40% from surface. Water is not soil. And, water is not oil. No law can make it otherwise. And, no good reason exists to treat ownership of groundwater as a private right. Just imagine what an illogical result would otherwise obtain: The land owners around "State Lake" might try to fence off user access, drain it with competing abandon and sell it to a pipeline across their property. Greed is the "principle" behind SB 332, not the benefit of future generations. FB, you violate your own mission statement by advocating for its passage.

  6. Ronald Gertson says:

    Mr. Howe is very effective at advocating for TFB policy positions, and I respect him for doing so. It is his job to do so. Such advocacy does not, however, allow for balanced and complete reporting. The unintended consequences downplayed in the article are by no means insignificant. The policy position taken by TFB leads inexcapably to ongoing and continuous reductions in groundwater for irrigated agriculture, unbeknownst to most Texas Farm Bureau members. No one will be able to hold a secure or reliable groundwater permit, as all permits will continually be subject to reduction for the purpose of making room for additional permittees.
    Districts are required by state law to limit withdrawals under their jurisdiction to an amount that will enable desired future conditions of the aquifer to be met. For many districts across the state, the goal of such management is sustainability, making it possible for future generations of Texans to depend upon these same groundwater sources into perpetuity. This means there is a limit to what can be pumped and districts are now forced to determine by some legal and hopefully fair means who will get to pump from that limited supply. Some districts are already having to answer that question as their pumping levels are at that capped amount, while others will reach that point soon enough.
    The vast majority of groundwater across Texas is used for agricultural irrigation. Irrigators have each invested 100s of thousands of dollars in accessing this resource and in farming infrastrucure made possible by accessing the resource. Should irrigators now be disallowed from continuing their operations because they have neighbors who have discovered that they can sell groundwater for a nifty bundle with absolutely no investment in capturing it? By making groundwater ownership a vested right of the landowner, SB332 is answering this question [quote]yes[/quote]. Is that really what Texas wants? Is that really what Texas needs? …to pull the rug out from under a major part of our economy, one that contributes so much to the welfare and fabric of this great state? And why would an organization that claims to represent farming interests take such a negative stand regarding irrigated agriculture? Heaven help us all if we shoot ourselves in the foot in this way.
    This change is being driven supposedly by the fear that if we don’t take this action now, then the state will eventually take over groundwater ownership. This is unwarranted conjecture, and in my opinion worth the risk considering the extremely high cost to agriculture of inserting the word [quote]vested[/quote] into a statute that already clearly states that groundwater is privately owned.
    Thank you for the opportunity to comment. For what it matters, I am a TFB member, irrigator, groundwater district board president, regional water planning group memeber and environmental flows stakeholder. I testified and heard the testimony firsthand on the bill in both the House and the Senate.

  7. Note: The following response was written by TFB State Legislative Director Billy Howe. He had trouble posting his reply and asked that I do so. Mike

    All landowners both large and small own the groundwater beneath their property. The Texas Supreme Court has stated this repeatedly since 1904:

    H. & T.C. RY. CO. v. EAST, 98 Tex. 146 (1904): An owner of soil may divert percolating water, consume or cut it off, with impunity. It is the same as land and cannot be distinguished in law from land. So the owner of land is the absolute owner of the soil and of percolating water, which is a part of and not different from the soil. No action lies against the owner for interfering with or destroying percolating or circulating water under the earth’s surface.

    TEXAS CO. v. BURKETT (1927): In the absence of such testimony, the presumption is that the sources of water supply obtained by such excavations are ordinary percolating waters, which are the exclusive property of the owner of the surface of the soil, and subject to barter and sale as any other species of property.

    CITY OF CORPUS CHRISTI v. CITY OF PLEASANTON (1955): In the course of time this became known as the "common-law" or "English" rule and it remains the rule in England and in a great many of the states of this Union today. Under this rule percolating waters are regarded as the property of the owner of the surface who may, "in the absence of malice, intercept, impede, and appropriate such waters while they are upon his premises, and make whatever use of them he pleases, regardless of the fact that his use cuts off the flow of such waters to adjoining land, and deprives the adjoining owner of their use."

    FRIENDSWOOD DEVELOPMENT COMPANY v. SMITH-SOUTHWEST INDUSTRIES, INC. (1978): With a rule that recognizes ownership of underground water by each individual under his own land, but with no limitation on the manner and amount which another individual landowner might produce (absent willful waste and malicious malice), legislative action was essential in order to provide for conservation and protection of public interests.

    As far as we can determine, there is no other use of private real property which enjoys such an immunity from liability under the law of negligence. This ownership of underground water comes with ownership of the surface; it is part of the soil.

    In addition to these court decisions the Texas Water Code has stated since 1949 that the ownership and rights of landowners MAY NOT BE DEPRIVED OR DIVESTED BY GROUNDWATER CONSERVATION DISTRICTS:

    Sec. 36.002. OWNERSHIP OF GROUNDWATER. The ownership and rights of the owners of the land and their lessees and assigns in groundwater are hereby recognized, and nothing in this code shall be construed as depriving or divesting the owners or their lessees and assigns of the ownership or rights, except as those rights may be limited or altered by rules promulgated by a district.

    So, with Supreme Court cases that have stated repeatedly that the landowner owns the groundwater BENEATH THE SURFACE, and a statute that recognized those rights since the inception of groundwater regulation, why have groundwater districts grandfathered and permitted wells in a manner that they cannot respect the property right of all landowners in the groundwater? They have taken a legal gamble that they may very well lose.

    Before the creation of the groundwater conservation districts represented by the gentlemen who commented above, all landowners had a property right to drill a well and produce groundwater. This property right did not disappear when these districts were created. It is now regulated, but it still exists. And, these districts do not have the authority to take away this right for the "public welfare." Government cannot take away the private property rights of one person to benefit another person. As stated by the US Supreme Court, and quoted by the Texas Supreme Court:

    ‘And this Court has many times warned that one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.’ Thompson v. Consolidated Gas (1937)

    The same was true for oil and gas. Prior to the creation of the Railroad Commission, every landowner had a right to drill a well and produce oil or gas. This right did not go away because the Rule of Capture is now regulated by the Railroad Commission. The Texas Supreme Court struck down rules of the Commission that attempted to take away this right. They said:

    "Owing to the peculiar characteristics of oil and gas, the foregoing rule of ownership of oil and gas in place should be considered in connection with the law of capture. This rule gives the right to produce all of the oil and gas that will flow out of the well on one’s land; and this is a property right….Both rules are subject to regulation under the police power of a state." Brown v Humble Oil (1935)

    "This is not a case of mere waste in which the Commission has exercised the sound discretion invested in it to conserve our natural resources. As previously stated, the orders of the Railroad Commission here complained of have the effect of taking one’s property and giving it to another under circumstances where the evidence shows that this is not necessary in order to conserve the natural resources." Marrs v Railroad Commission (1944)

    Historic users had and currently have an option to protect their future use and provide certainty–buy or lease water rights from landowners who could impact their wells. Or, if those landowners are so inclined, they also have the option to simply sign over their rights for the good of their local community and economy. But, it is their decision. Many landowners have agree to do such with rural water utilities.

    Instead, historic users have chosen to take a legal gamble and use GCD regulation to condemn the groundwater rights of their neighbors. It is the groundwater version of the KELO case. Texans voted overwhelmingly to amend the Texas Constitution to prevent government from taking private property to benefit private individuals.

    Billy Howe
    TFB State Legislative Director

  8. Of the various comments to Billy Howe’s thoughtful article on groundwater ownership, only Ron Gertson’s merits a response. The rest reflect the type of confusion you tend to get when non-lawyers start opining on the law and non-scientists start talking about hydrology. These are fields that require special training for a reason.

    On the law side, the ownership of groundwater dates to the inception of statehood, and has been clear since the Texas Supreme Court said in 1860 that the landowner owns all that lies beneath the surface of his land to the center of the earth. It is from this ancient Roman principle that we get the odd notion that a landowner owns sand or gravel or caliche that may be mined from under the land, or that he owns the oil and gas that exists (however transiently) beneath the surface. Denying this principle as to groundwater is more than reckless and intellectually dishonest—it is dangerous. Why do folks like Mr. Gertson believe that the State will stop at groundwater in its quest to control all the means of production in Texas? Take his arguments and those of his cohorts and apply them to everything else below the surface, and watch your property rights and liberties disappear in an inevitable march toward a system of government we cannot tolerate or afford. What do I mean by that? Here’s a homework assignment: study governmental systems. Find a label for the governmental model where the state owns the means of production.

    And make no mistake about this issue. Groundwater must either be owned by the landowner or by the State. Title to real property must vest somewhere at all times. Where did our title to groundwater come from originally? The same place as title to the land itself. The State owned all of it as a consequence of the blood sacrificed at places like Gonzales, Goliad, the Alamo and San Jacinto. In that instance, it was title by conquest: we took the land itself away from Mexico. Later, the State began parceling title to land out to various people and groups in the form of land grants. Importantly, the State could have but did not reserve title to minerals or groundwater as it conveyed title to these hardy early settlers. Title to the surface and everything beneath it then passed into private hands. Over the next couple of centuries, people bought it and sold it and traded it. Never in our history has anyone seriously suggested that the State intended to or did reserve title to groundwater. Billions of dollars have been spent by Texas cities in reliance on these simple truths.

    But back to Mr. Gertson. All I need to know about Gertson is that he serves on the board of a groundwater district. He recently said: “GCDs operate under the assumption that ownership does not occur until it is captured, therefore a GCD can restrict or even deny access to groundwater so long as there is a scientifically plausible reason for doing so without the risk of a private property takings suit against it.”

    Why do groundwater districts almost uniformly oppose the Fraser ownership bill? It’s pretty simple. A few disingenuous lawyers who represent districts have convinced them that the recognition of 150 years of Texas law on ownership will bring them to utter ruin because of takings claims. We have challenged this little fistula of attorneys to show us the proof of that dire prediction, and they will not because they cannot. Take the example of the Edwards Aquifer. The Edwards Aquifer Authority was given incredible power to abuse property rights by statute. That’s right—the statute contemplated that the EAA would wind up taking private property rights as a result of its regulation. That’s why the act included a provision requiring the State to compensate those whose rights were taken.

    And just how badly did the floodgates open on takings litigation in the Edwards? Three cases in 15 years. One case with a judgment that is on appeal for the sum of $750,000. As a trial lawyer, let me tell you that sum does not encourage or attract litigators. This is particularly true because the Water Code says a landowner who sues a district and loses must pay the district’s attorneys fees. There are few statutes in Texas that provide such one-sided treatment of attorneys fees. This provision has a chilling effect on the exercise of the right use the courts of this State to seek redress for wrongs. Finally, asserting takings claims is not like fishing with dynamite. Takings claims are hard to prove under existing law, which may explain why so few have ever been asserted even though landowners have always owned their groundwater in this State.

    Let’s look at oil and gas regulation. If Gertson is right, the heavy handed regulation of the Railroad Commission must result in billions of dollars of jury awards every year. But that has never been the experience. Why not? Because the RRC learned early on to regulate within the law. Gertson seems to think that GCDs are incapable of fair and reasonable regulation. Perhaps that’s how he views his role in his district, but most districts believe they are being fair today and can continue to be fair in the future.

    I guess the other thing that is notable about Mr. Gertson is his self-interest in this issue. Gertson is a fifth generation rice farmer whose family owns 8,000 acres of land in Wharton County. He uses 4 acre feet per acre on at least 3,000 of those acres, and complains that a system that recognizes ownership of the water he’s been using might result in having to share that water with his neighbors. Apparently he is willing to say that the groundwater in place belongs to the State so the groundwater district he serves on will be able to continue giving him all the water he has been using without recognizing the real property ownership of his neighbors from whom he has been taking.

    The naked truth is that groundwater districts oppose private, in place ownership of groundwater because it is inconvenient to their regulatory schemes. It would be far easier for them to impose unequal treatment on groundwater users if the users did not have a constitutionally protected interest in the groundwater while in place. Most groundwater districts today are controlled by farmers, which makes sense because they are the ones using 98% of groundwater produced at this time. But Mr. Gertson needs to remember that he and his friends may control the districts today, but demographics being what they are, tomorrow the districts may be controlled by his big city cousins. I guarantee you that he will then cry out for constitutional protection of his rights in “his” groundwater. I just hope he and his kind have not given those rights away before that day comes.

  9. Larry J. Doherty says:

    For reply to Mr. Jones – Is that you, T. Boone?
    Mr. Jones says he’s a lawyer, and that only lawyers and hydrologists are smart enough to know about groundwater rights. When you Google-up his name, you get the same one listed many times as your Amarillo mouth-piece. Is he fronting for you again? Why do you suppose he’s hiding that? Would your interests associated with his argument destroy his credibility? He does not further credential himself, but he’s sure that non-lawyers and non-hydrologists are too ignorant to merit his reply. So, he confines himself to attacking the integrity of Mr. Gertson. He’s very offensive for someone who could represent you. Did he advise you to lease all of those groundwater rights you are reported to have?

    His arrogant elitism is surpassed only by the fallacy inherent in his argument, Ad Hominem. Google that. Worse, in dismissing the questions raised by others’ comments he reveals his own inadequacy at seeing the real issue: The Right of Every Texan to a Clean Drink of Water. It’s a Human Right. Fundamentally, the ultimate issue is one of moral priority. Maybe he’d allow an ethicist to comment.

    Texans will be ever closer to seeing the bottom of the rain barrel as population doubles in the next 50 years and current water availability declines. What are you going to do when the well runs dry? Only the inhumanly greedy are concerned with their self-interested “VESTING” instead of rationing. But, rationing is too scary to consider while we’re still able to spend more water on irrigation than drinking. Don’t you think that a “Clean Drink of Water” ought to be the primary point of conservation for the children of this state? They can’t drink oil nor eat gravel, notwithstanding Mr. Jones’ concern for what the legislature did or did not do 150 years ago. There was no demand/supply problem then. Duh! Just a few thousand years ago the noted “hydrologist” and scholar, Homer, thought all the oceans flowed under the floating land and came out as fresh water in streams and rivers. Such mythology is just one form of pure fiction.

    “Vesting” is also fiction, a “legal fiction.” It occurs in law when law maker ignore the truth to create a “reality” they want to have, but can’t prove or reason logically. When they get caught they go all Ad Hominem. Examples: Truth – Groundwater is not oil; Truth – Groundwater, surface water (rivers, lakes, etc.) and rain water are all the same H2O and come from the same source, rain clouds.

    Mr. Jones’ binary world limits his consideration of groundwater ownership to only “the landowner” or “the State.” OK, Truth – The State owns the surface water, 40% of the available fresh water supply! So, who owns the other 60%, groundwater? Answer: The State, i.e. you and me. The power to control is the power to own. The Texas Legislature created the Texas Water Development Board to oversee and regulate groundwater. It is a decentralized authority, unlike the TCEQ also created by the legislative branch to oversee surface water. But, Mr. Jones knows that ‘cause he’s a smart lawyer.

    What happened to 150 years of “law” that landowners own their groundwater? Mr. Jones knows that for the same reason he knows about the 3 Branches of our government system, the answer is an inconvenient Truth – The old law was “Common Law” or Court made law. Civil Courts have always made law in Texas and America where needed to right a wrong or fill a void in the absence of legislation. BUT, every first year law student knows that when the Legislature acts, it TRUMPS Common Law. The old Common Law of groundwater has been abrogated.

    There was no “vesting” of groundwater ownership at Common Law. But, even if there were, the legislature did not vest landowners with any surviving ownership rights. The TWDB’s system controls groundwater in Texas. Pipeline builders and wantabe Water Sheiks leasing water right are totally out of the ownership loop without “vesting.” That would be analogous to drilling a dry hole, if the lessor could not deliver.

    That’s why the “vesting” language is in the Fraser Bill, SB 332. It is a lobbied interest, a boon, a bone, to the interests that want to make a bigger buck off of the control of groundwater. The State will have to BUY them out to conserve and save the aquifer, if vesting becomes law. There is NO similar provision in surface water law. There’s more consequence than just a taxpayer funded buy out. With the new Eminent Domain Law, it puts large landowners higher in the “Winners Bracket” in Condemnation Court when development “Rights” to build on top of sensitive aquifer re-charge zones are taken away by the State. That day is coming, so don’t look to the past for evidence of “taking” claims. It is in front of the smart Mr. Jones’ nose. You’ve got to get up early to “keep up with the Joneses.” He tipped his hand though, by accurately stating, “Takings claims are hard to prove under existing law,… .” That’s why what they are really trying to do is CHANGE the law and create a vested interest where none exists today. They are peeing on our boots. Or, is that you I hear?

    Taxpayers will have to pay the Court judgment, if and when they win. Then, the same taxpayers will have to pay higher prices for the water when they buy it back for a clean drink. Draconian, huh? Clever too, for even a smart lawyer. Non-lawyers and non-hydrologists are just too ignorant to figure this one out, huh? Mr. Jones forgets about the job they did at stopping the Trans Texas Corridor scam. A genius I. Q. is not required to figure out that water is not oil, or that groundwater is not soil. If you pump groundwater, the soil stays there. OMG don’t tell me that the Texas Supreme Court got it wrong for 150 years!!! Yes, even the U.S. Sup. Ct. is fallible. Ever read their Dred Scott decision? Time and circumstances changed. The “VESTING” bill is an effort to make a clean drink of water more costly and turn another lie into law.

  10. Bill Richter says:

    More on….. UNINTENDED CONSEQUENCES
    Most cities have ordinances prohibiting water well drilling in their incorporated area. They like to sell their water. It seems that cities would be constitutionally "TAKING" property by not allowing property owner to drill for their "vested" property. I can envision huge class action law suites. Any attorneys care to comment?

  11. Note: The following response was written by TFB State Director Russell Boening. He had trouble posting his reply and asked that I do so. Mike

    A little background on myself and my farming operation. We have used irrigation on our farm for about 55 years. The operation started out with my Dad and Uncle; for the past 32 years it has supported my parents, my brother and I and our families as well as a few very dependable employees and their families. I currently serve on the Board of Directors for Texas Farm Bureau (TFB).

    After reading the comments posted above it is VERY clear to me that Mr. Gertson should be much more concerned with the opinions of people like Mr. Doherty and Mr. Richter than with the policy of TFB.

    We all know that several court cases in the past 100 yrs. have held that the landowner owns the water under his land. Many people seem to want to cloud the issue; I think merely to try to keep as many people confused as possible. One argument I often hear against S.B. 332 is that underground water moves, so what happens to my water when it moves under my neighbor? Pretty simple: it now belongs to my neighbor. Another argument is that we really don’t need new law because it’s already accepted that the landowner owns the water. My answer to that is that we NEED to make it very clear because some people DO NOT accept what has been common law for over 100 yrs.

    I fully realize that if ALL landowners have a real property right to the water under their land and a "fair chance" to capture that water SUBJECT to the rules and regulations of their groundwater district that I may not be able to pump as much in the future as I did in the past. No, I am not being benevolent as Mr. Gertson suggested in his testimony before the House Natural Resources Committee. If landowners own the water "in place" under their surface, then ALL landowners have that ownership, not just a select few to be decided by the State or another gov’t agency. Some day, our operation may not have irrigation; it appears to me that our State leaders would rather this land grow houses rather than crops. I don’t think we can change that mindset, but we should surely NOT change the ownership of groundwater in Texas.

    This is why I support S.B. 332. The vast majority of TFB members support this position because they believe that’s really the way it has always been and they want it affirmed in statute. No HIDDEN AGENDA, just straight foward policy.

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