Texas court rules on groundwater property rights

As drought conditions in much of Texas continue, a landmark decision by the Texas Supreme Court further defines private property owner’s rights and limitations to groundwater underneath their land.

The court issued its decision on Edwards Aquifer Authority v. Day on February 24 after two years of deliberations, stating land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation.

The court wrote in its decision that a landowner does indeed have a constitutionally protected ownership interest in water underneath their land, similar to rights for oil, gas and minerals.

“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 lawsuit centered on challenges to the Edwards Aquifer Authority (EAA), which regulates groundwater production from the Edwards Aquifer, the main water source for central Texas. The EAA had argued that a landowner does not own the water underneath the land until the water is brought to the surface and possession is taken.

The court also determined the EAA has the power to regulate groundwater production, but it must consider factors other than just historical use.

Groundwater is a major source of water in Texas, providing about 60 percent of the 16.1 million acre-feet of water used in the state, according to the Texas Water Development Board.