By Regan Beck
An outstanding year for property owners and property rights in the Legislature and the courts includes important steps to help safeguard private property rights in Texas groundwater. Last year’s crippling drought showed us just how critical water is in Texas.
Some say the solution to water shortages is to take Texas groundwater rights away from property owners and give them to the state. Sometimes, those suggesting this have a vested interest in the outcome. They’ve said that property owners only own their water after it’s pumped out of the ground.
That issue was addressed during the 82nd Texas Legislative Session of 2011 with the passage of Senate Bill 332. Senator Troy Fraser introduced this landmark legislation in the Senate and Representative Allan Ritter sponsored it in the House. This legislation confirms that groundwater belongs to property owners before it’s pumped to the surface and that property owners have a right to drill for and produce groundwater.
The second landmark event supporting property and water rights was the February 2012 Texas Supreme Court decision in Edwards Aquifer Authority vs. Day McDaniel. The court ruled that groundwater is owned by property owners without their having to pump it to the surface.
The Court emphasized groundwater is private property and cannot be taken for public use without adequate compensation. This is guaranteed by article I, section 17(a) of the Texas Constitution. The Court compared groundwater to oil and gas and said it should be treated in a similar manner. Like oil and gas, it can be regulated, but the court said the regulations must be fair. Unreasonable regulations could result in a “taking” from property owners.
In this extremely important case, it was gratifying to see the Texas Supreme Court refer to the language in SB 332 as proof the Legislature considers groundwater a property right. The Court recognized the Legislature’s actions last year as intent to give a fuller understanding of the common law. Ownership and rights of property owners includes groundwater beneath their property.
Even after all of these positive developments for property owners, some can’t resist attacking SB 332. Detractors say the new legislation modified the common law “rule of capture” liability defense for groundwater. They say a new cause of action was created, which reduces the available common law defenses for liability. We strongly disagree with this notion.
The rule of capture liability defense protects water pumpers from liability if their activities cause neighbors’ wells to go dry. Various courts have weighed in on this going back to the Houston & T.C. Railway Co. vs. East case heard in 1904. The wordings of the courts’ opinions have varied but have stated pumpers are not liable unless they “maliciously take water for the sole purpose of injuring a neighbor or wantonly or willfully waste it.” Similar language in SB 332 states property owners are allowed to pump “without causing waste or malicious drainage.”
This slight change in wording does not create a new cause of action for two reasons. First, the language used in various court cases is not always consistent and the language used in SB 332 is well within the scope of language used by those courts. Also, the legislation expressly states that this new law does not affect the common law defenses under the rule of capture. The exact wording is: “The groundwater ownership and rights described by this section :…(2) do not affect the existence of common law defenses or other defenses to liability under the rule of capture.”
That’s very clear. The authors took pains to ensure that existing common law defenses were still available after enacting this new statute. They included language found in court cases on the issue and made a clear declaration in the legislation that all common law defenses are still in place. Not only is SB 332 a pivotal piece of legislation to define groundwater ownership, it does so without increasing the liability risk for property owners.
Regan Beck is the Assistant General Counsel for Public Policy for the Texas Farm Bureau.