The Texas Supreme Court ruled Friday that landowners have an ownership interest in the water underneath their land, a decision that could seriously curtail statewide efforts to manage water resources.
The highly anticipated ruling is the court’s most significant decision on who owns water that flows underground. The state and water management districts had asked the court to reconsider a 1904 decision that groundwater was too “occult and mysterious” to understand, and therefore the state could not regulate how much a property owner could pump from underground.
Scientists have since mapped how water flows through aquifers and can predict what happens downstream when someone pumps water upstream.
The city of San Antonio relies on the Edwards Aquifer for its water supply, and the authority sought to restrict pumping from it to guarantee water supplies. The authority said it should not have to pay for reasonable restrictions on how much a landowner can pump from the aquifer. But two landowners, Burrell Day and Joel McDaniel, sued the authority, demanding to be compensated for the loss of their right to pump water for their farm.
Friday’s decision expanded a property owner’s rights, saying landowners not only had the right to pump the water, but they also actually own it in the same way a landowner may own oil and gas below their property.
“Whether groundwater can be owned in place is an issue we have never decided,” the court wrote. “But we held long ago that oil and gas are owned in place, and we find no reason to treat groundwater differently.”
The implication is that if the state wants to restrict the use of water, they must pay the landowner what the water is worth.
“The likely result of this opinion will be more, not less, litigation over groundwater management in Texas,” said Ken Kramer, director of the Lone State Chapter of the Sierra Club. “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 issue is especially important in Central Texas, where much of the drinking water supply moves across the state in underground aquifers, and in West Texas, where farmers depend on aquifers for farming.
The Edwards Aquifer Authority issued a statement saying it was studying the decision, which sends the case back to state district court for trial. A phone call to Day’s attorney was not answered.