A new landmark ruling this year solidified the rights of Texas landowners over their groundwater.
Historically, the "rule of capture" governed the use of groundwater by Texas landowners. This means that anyone can capture as much water under their land as they need, as long as they do not so wastefully or with ill intent. The owner holds no liability to his or her neighbors whose wells might be depleted by this pumping. This "law of the biggest pump" went uncontested until the formation of groundwater conservation districts and groundwater management organizations. One of such organizations is the Edwards Aquifer Authority (EAA), established in 1993, to "manage, enhance and protect the Edwards Aquifer system".
EAA manages the use and conservation of groundwater and awards usage permits based on historic "beneficial use" - the amount of water put to use by the landowner in the past. Beneficial uses most often means irrigation, stock water in the case of ranching and general house water consumption. This historic use was the primary issue in the Edwards Aquifer Authority vs. Day case.
The story of the case began in 1994, when two ranchers B. Day and J. McDaniel bought a large, 381-acre ranch in Bexar County. This property is within the jurisdiction of EAA. At the time of purchase the property contained an old, abandoned well that still flowed under artesian pressure and was previously used to irrigate about 7 acres of land.
The new owners of the property intended to drill a new well and sought a permit from the EAA. The EAA based the allowance of water on a 20-year period before the purchase of the ranch, and therefore limited water use to irrigating 7-acres. And thus a long legal battle began.
Texas Supreme Court's decision reaffirmed that landowners have the right to the groundwater beneath their property and that the EAA must compensate the ranchers for the regulations that controlled the amount of water that could be pumped from their land.
Groups that support property rights were delighted by the court's decision, saying it was "better than they had hoped for". Susan Durham, the Executive Director of South Texans' Property Right Association applauded the court's decision and said: “Recognition of this right will allow property owners to preserve groundwater in the ground, instead of forcing them to pump water just to establish ‘historical use,’ to protect their right to use groundwater in the future.”
But not all rejoiced at the decision. Ken Kramer, Director of the Lonestar Chapter of the Sierra Club noted that: "The court has done a huge disservice to everyone who has been working for proper management of the groundwater resources needed for our state's people and our environment."
The Supreme Court's decision does not limit EAA's ability to manage groundwater under its jurisdiction, but only states that the EAA must compensate property owners for any "takings". The problem lies primarily in how the EAA determines the amount of water permitted for use. The historical beneficial use may not be the best way to determine the amount of water permitted for use, especially in the cases of change of property ownership such as this one.
This ruling will probably lead to more litigation and possibly a big change in the way that the EAA manages and assigns permits. Groundwater continues to be a property right and not managed as a public resource. But with intensifying droughts and growing demand for fresh water this definition of groundwater might need to be reconsidered in order for the state of Texas to continue to provide water to its citizens.
