ISSUES POLICY Groundwater is Groundwater
By Jay Evans, chair, TSCRA Natural Resources and Environment Committee
T
HE TEXAS SUPREME COURT RULED IN 1904 THAT LAND- owners could pump all of the groundwater they wanted from under their land without being
held liable to others for drainage. This ruling confi rmed the “rule of capture” and es-
tablished that landowners have an ownership interest in the groundwater beneath their land. After all, how could landowners have an unlimited right to produce something that wasn’t solely theirs to begin with? Unfortunately, in the years since 1904, ownership
of groundwater has continued to be an issue and has ultimately been challenged. The regulation and management of groundwater
have increased because the Texas Legislature and lo- cal landowners in many areas of Texas have created groundwater conservation districts. These districts were designed to ensure that landowners’ ownership interests in groundwater are protected at the local level. These districts were not created, and should not be used, to take property rights away from landowners. Similar to groundwater conservation districts,
groundwater is also regulated and managed by groups like the Edwards Aquifer Authority (EAA). In these regulated areas the “rule of capture” has, in
effect, been modifi ed. Although there is an exemption for domestic and livestock use, everyone else wishing to drill a well and pump groundwater must get a permit
88 The Cattleman November 2014
from their local district or authority. Local control versus regional or state control of
groundwater continues to be a debate. Like many other property rights issues, when property rights meet regulation, there needs to be a balance or else the constitutional rights afforded to landowners can be taken without compensation. Case in point: Mr. Burrell Day and Mr. Joel McDan-
iel needed a permit from the EAA for their agriculture operation and applied for one as required. After years of delay, the permit was granted, but only for a min- iscule amount of the groundwater needed. The EAA argued that they could regulate however they wanted because Day and McDaniel did not have any ownership interest in the groundwater. Day and McDaniel fi led a takings claim against the EAA in court. In 2010, the case of the EAA v. Burrell Day and Joel
McDaniel was argued before the Texas Supreme Court. The Day/McDaniel case was of great concern to
Texas and Southwestern Cattle Raisers Association (TSCRA) leaders and members, so we joined with other landowner groups to submit a brief in the case. Fur- thermore, our landowner group coalition helped craft what would become Senate Bill 332, which affi rmed that groundwater is the real property of the landowner. This legislation passed during the 2011 session of the Texas Legislature and was signed by the Governor. It
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