February 26, 2012

Statist Mindset at AP: Texas Court ‘Approves’ Idea That Landowners Own Underground Water

At the Associated Press on Thursday, reporter Chris Tomlinson clearly took the side of statist environmentalists in covering the Texas Supreme Court’s decision recognizing the right of landowners to pump water flowing through their property underground.

Tomlinson’s sub-headline said that the court “approved” the idea, and his text claimed that it had “expanded property owner’s rights.” All the court did was formally recognize a principle which has long applied to underground oil and gas. The dispute involved restrictions desired by the city of San Antonio on how much water two farmers could pump. Much of Tomlinson’s writeup follows below:

Water ruling favors landowners
State high court approves ownership

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.

The implication is that if the state wants to restrict the use of water, it must pay the landowner what the water is worth.

Imagine that. A government which wanted something for nothing has been thwarted. The Sierra Club spokesperson Tomlinson quoted thinks this is awful, citing how the ruling handicaps “the proper management of the groundwater resources needed for our state’s people and our environment.” No, it means that San Antonio’s interest in a reliable water supply now has to be balanced against the landowners’ interest in having enough water to properly farm on their property.

That seems pretty fair to me, and is clearly preferable to what the city really seemed to want, which was the ability to tell anyone anywhere on the aquifer — apparently even far outside city limits — how much water they could use, with the definition of “reasonable limits” defined by the city. Contrary to Tomlinson’s presumptive perspective of evil landowners vs. noble government, allowing that level of city control is what would have amounted to a major expansion of its powers.

Here’s another perspective, via Julie Fisher at KFYO in Lubbock which confirms how statist Tomlinson’s perspective really is:

Landowners Keep Water Rights after Texas Supreme Court Ruling

In a Texas Supreme Court ruling, landowners have ownership interests in water resources beneath their property, a decision which greatly affects statewide water management efforts. The controversial ruling says the government has no right to restrict a landowner’s usage of water underneath their property without providing proper compensation.

There had been talk of greatly restricting farmers’ water rights, as the counties and groups across the State scramble to cope with dwindling water supplies. The decision was spurred on by a lawsuit filed against the Edwards Aquifer Authority after they attempted to regulate how a farmer used his groundwater so that the resource could be used farther downstream.

That’s more like it. It was a good move on the court’s part to say “no” to the statist overreach.

Cross-posted at NewsBusters.org.



  1. From experience in Colorado, overall you’re instincts are probably right. The property owners must be compensated if they have a Well and now the State of Texas wants to change the rules about how they can use that well that is on their property. Any property owner should be familiar with this principle: If you own it, you are effectively automatically grandfathered to retain existing capabilities. BUT, as soon as you want to modify your property, getting it up to current code then becomes a requirement. The government cannot TAKE away something that exists without due COMPENSATION. Yet, if you want to move expand your Septic system, build a barn, add an addition to your house or other major modifications, etc then a Building Permit may be required. Since granting of a Permit is a new privilege being requested, NOW they government can impact your existing functions without a Taking-with-Compensation. For example, building a House on a bare Lot can include an Improvement Assessment, and the assessment goes to the school building fund since their capacity is directly related to the number of Residential Properties whose number of bedrooms is indicative of the property being one for a Family with minor children.

    In Colorado, three things come into play:
    - Well rights: Approval to drill a well (much deeper than here in Ohio). Rural purchasers should get the well transferred to new name. This is not automatic.
    - Water rights:
    == The farmer had water rights that were based on ability to draw from the ditch into his irrigation system. (And, even though a ditch abutted my property, technically I couldn’t put a pipe from it to the horse pasture. I must provide water to my horses from the well.) Supposedly, good pheasants in those ditches, but I never tried that.
    == The well did NOT have water flow rights; those are discerned from the Well Permit, which documented the flow rate capability of the well. Risk: If there is a multi-year drought AND if all well permit owners pump too much, then those with less deep wells may lose access to the water table. Not sure if/where that has happened. During drought years, those on Municipal water have to live by usage restrictions, and the Provider can monitor it by meter usage. Wells can water their landscaping and wash their car. Public water users were restricted to washing your car by day-of-week and time-of-day (later evening means less water lost to the heat).
    - “oil, gas and minineral rights” are similar principle. But they are distinct rights.

    The well is on the property. Most Colorado OGM rights and Water rights are no longer linked to the Residential home. They’ve been sold off to investors. That is documented in the multiple MULTIPLE page Title at closing.

    I’ve not read the details of your post. Just quickly offering some terminology, in case you do follow-ups.

    Comment by Cornfed — February 26, 2012 @ 11:53 pm

  2. Thanks for that input. It may come in handy when the NYT and other decide that the ruling means the end of the world.

    Comment by TBlumer — February 26, 2012 @ 11:57 pm

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