Groundwater ruling balances conservation and property rights

By Billy Howe
TFB State Legislative Director

The long-awaited decision from the Texas Supreme Court on the Edwards Aquifer Authority v. Day McDaniel makes it clear that the landowner owns the groundwater in place as part of their land.

Prior to the Texas Supreme Court’s ruling, landowners were in jeopardy of losing the critical legal balance between governmental regulation and private property rights. It is a balance that applies to all private property rights, not just groundwater. Whether is a federal, state or local regulation, landowners have a legal right to challenge unreasonable regulation of their property.

The Texas Supreme Court compared the ownership of groundwater to oil and gas. The Railroad Commission of Texas has regulated the drilling for and pumping of oil and gas for over 100 years. The commission requires permits, dictates well-spacing and limits the pumping of oil and gas each month to prevent waste. Ownership of oil and gas doesn’t prevent regulation and neither does the ownership of groundwater. In fact, the Texas Supreme Court clearly stated as much in their ruling.

Groundwater conservation districts have very broad authority to require permits to drill, spacing of wells, and limits on pumping to conserve groundwater. As long as the regulation is reasonable and necessary to protect the aquifer and doesn’t discriminate between landowners, there will be no regulatory takings awarded against groundwater conservation districts. Landowners will only be awarded compensation if the regulation leaves them with property that is no longer economically viable. This is the same standard to which your federal, state and local governments are held. If the federal government can protect water quality and endangered species without having to compensate the landowners for every little restriction placed on private property rights, then why would groundwater be any different?

Another claim that simply has no basis in fact is that this ruling will lead to a “geyser” of lawsuits. Such claims are false.

First, there is no incentive for most landowners to sue a district. The law on regulatory takings is heavily stacked in favor of government regulation, so landowners rarely win. As stated above, unless the landowner is left with a worthless piece of property, the court generally rules in favor of the governmental entity. And, under the Water Code, if you sue a district and lose, the landowner has to pay the district’s attorney fees and court costs. Not many landowners will be interested in such a risk. 

Second, history doesn’t support this claim. With all the restrictions placed on private property rights by federal, state and local governmental entities, there has never been a “geyser” of lawsuits. Before the legislature granted authority to the Railroad Commission to regulate the production of oil and gas, drilling for and production of oil and gas was under the Rule of Capture, just like groundwater. When our state went from Rule of Capture to statewide regulation of oil and gas, there were a few regulatory takings suits filed, but there has never been a “geyser.” Considering the value of oil and gas, if there was ever an incentive for a “geyser” of lawsuits, that situation would have been it. But, it didn’t happen. And it won’t happen with groundwater, either. Cities are actually the most restrictive on private property rights of any governmental entity. Yet, they seem to be functioning and regulating quite well. Why?  See the first point above.

Almost everyone owns property and all property is subject to governmental regulation to protect the public health, safety and welfare. The U.S. Supreme Court first established this legal precedent in 1906. Without private property rights, however, there are no limits on that government regulation. It is the constitutionally-protected balance we all need and must have as a democracy and economy based on private ownership of property.


6 Responses to “Groundwater ruling balances conservation and property rights”

  1. Billy Mann says:

    Thank you for hot comments concerning the Water Districts
    Billy Mann

  2. Don Sugarek says:

    Finally, an assertion of a fact that is so long overdue. So proud of TFB’s involvement and leadership on this issue.

  3. Paula Payne says:

    I feel I am experiencing unreasonable regulation of my land in that my county, Williamson, will not allow me to drill a water well for my animals and garden because I am .37 acre short of the 2 acre minimum they say they require. If I can place a well within state of Texas distance requirements, etc., why am I being discrimated against?

    • Billy Wayne Howe says:

      Ms. Payne, I believe you are describing the state standards for drilling wells that the counties enforce for the state. The state rule requires wells to be drilled 150 feet from potential sources of contamination, 100 feet from a septic field, and 50 feet from a property line.

      These rules are based upon public health and environmental standards. So, they are for a legitimate public purpose and would likely be upheld by the court. However, if the rule “takes” your private property right, even for a public purpose, then you would have to be compensated if the regulation significantly devalues your property. But, as I said in this blog posting, the cost of suing Williamson County is probably a pretty big deterrent from filing a takings claim, isn’t it?

      You may want to consult an attorney as to your rights.

      • A letter was sent out to water well drillers and pump installers stated in 1999 Williamson County will not allow drilling for a water well if the property is under 2 acres. It was sent out in 2010. Of course it wasn’t mailed out until 11 yrs. later, which stumped me and a few of my fellow water well service people.

  4. Dee Martin says:

    I’m trying to find regulations for flow meters… my neighbor has 3 houses on one well and I have two but had to install meters he hasn’t. I’m Montgomery county.

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