➢ Is water owned by me?
➢ Who can keep me from my water?
➢ What can I do about it?
Based on the Texas Supreme Court case styled Day v. Edwards Underground Water Authority, issued February 24, 2012 the short answer is yes. Historically, the Texas Courts have held that an owner of land owns the water beneath the surface of his property with few limitations. The “Right of Capture” is a long-standing rule of law that allows a landowner to pump all the water he wishes to capture underneath his property. The Day case has confirmed the “Right of Capture” and has extended the ownership rights of the water owned under your land to the “water in place.” In other words, the Court has confirmed that although governmental entities (groundwater conservation districts) have the ability to place restrictions on your ability to drill and pump your water, if such a limitation rises to the level of a constitutional “taking” you might be entitled to recover damages for such limitations.
In Texas, the oversight for all the water has been charged to the Texas Water Development Board. This board that sits in Austin, issues mandates to the Texas Groundwater Conservation Districts, who have been charged with developing water plans for each of their respective regions. Each district is charged with developing, from time to time, a “Plan” for the fair distribution of water to the landowners of their district. These plans are subject to the approval of the Texas Water Development Board. These 99 Districts span the state, however there are portions of the state that are currently not subject to regulation. These Districts are covered by one of 16 Groundwater Management Areas. The Groundwater Conservation Districts have the authority, and duty, to manage the discharge of groundwater in their respective areas with the goals being:
➢ efficient use of groundwater
➢ controlling and preventing waste
➢ controlling and preventing subsidence
➢ addressing conjunctive surface water issues
➢ addressing natural resource issues that impact water
➢ dealing with water delivery in drought conditions
➢ addressing conservation and recharge plans
➢ addressing desired future conditions established
In the event that a Groundwater District unreasonably limits your ability to pump YOUR water from beneath YOUR land, you can pursue a legal case for the recovery of the value of that water. This would take the form of a case based upon the unconstitutional taking of your property. If you are able to establish that the taking meets the elements of the Penn Central analysis.
1. The economic impact of the regulation on the landowner;
2. The extent to which the regulation interfered with the economic expectations of the landowner; and
3. The character of the governmental action.
Depending on the facts of your particular case, you might be entitled to recover the value of the property taken due to the governmental entity restrictions.
In other words, if you make a request to drill a well underneath your property and the local groundwater district does not permit you to drill the well for one reason or another, you might be entitled to compensation from that water district.
Written by:
Brian Berryman
Watts Guerra LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, TX 78257
Office (210) 447-0500
© Watts Guerra LLP 2015
