The Texas Supreme Court has issued a long-awaited ruling in Edwards Aquifer Authority v. Day, deciding unanimously that Texas landowners own the water under their properties "in place."
The Feb. 24 decision is likely to be remembered as one of the court's most significant in recent years -- and one of the most detrimental to the state's parched future.Under the ruling, the Edwards Aquifer Authority may have violated Texas constitutional rights against governmental "takings" when it granted only a portion of the groundwater withdrawals sought by landowners.This cements the nonsensical bifurcation of water law in Texas, under which surface water is owned by the state on behalf of its citizens while its use is subject to state regulations. That means surface water is a public resource.But by confirming private property rights to groundwater in place, the court bolsters the inconsistency that Texas water can also be privately owned, depending on where it is found in the hydrocycle.Water typically flows from rivers to aquifers and back again as it moves through the cycle, often across short distances and time periods, as in the case of the Edwards Aquifer.But, since groundwater is now definitively private property, springs feeding rivers and lakes could be legally drained by overlaying landowners, irrespective of the impact on downstream water rights holders, municipalities and ecosystems.While groundwater districts might have some authority to regulate landowners' activities (but not too much for fear of causing a taking), all other stakeholders are closed out of the determination.The court justified its decision, largely, by analogizing groundwater resources to oil and gas deposits. In comparing the two resources, the court asserted that "to differentiate between groundwater and oil and gas in terms of importance to modern life would be difficult. Drinking water is essential for life, but fuel for heat and power, at least in this society, is also indispensable."Although fuel for energy is certainly an important commodity in today's society, paralleling its significance to life suggests we absolutely cannot live without it. Really?A substitutable natural resource is equivalent in importance to the most fundamental and irreplaceable element of life? Not only is such an analysis flawed, it's a precursor for bad public policy and a travesty of justice.Curiously, after the comparison, the court stated that "the issue is not whether there are important differences between groundwater and hydrocarbons; there certainly are. But we see no basis in these differences to conclude that the common law allows ownership of oil and gas in place but not groundwater."What the court is saying is that the differences between hydrocarbon resources and water are really immaterial for the purpose of determining property rights. Hence, it appears that the court felt a need to degrade the value of freshwater, as irrelevant as it may be, merely to justify the desired outcome.While property rights advocates may laud the decision as a victory for landowners, it's a tremendous blow to local and state water planning and conservation efforts. By ruling that groundwater is constitutionally protected property, the court tied the hands of all Texas governments -- state as well as local.Texas just endured its worst one-year drought, and worse years are seen ahead. The state's population is predicted to nearly double within 50 years, while available water resources are actually expected to decline by 10 percent.By restricting governmental oversight into the management of the state's groundwater resources, the court has effectively undermined and jeopardized the state's ability to respond to water shortages and plan for its future. Groundwater planning mechanisms, including desired future conditions, groundwater management areas and other efforts developed in recent years, may be all for naught.Significantly, the takings wagon may have already started taking on passengers. In a case now on appeal to the Fourth Court of Appeals (Bragg vs. Edwards Aquifer Authority), the lower court ruled that the authority had unconstitutionally taken Bragg's groundwater through overregulation to the tune of $867,000.Now that the Texas Supreme Court has confirmed constitutionally protected property rights in landowners' groundwater, it is inconceivable that more landowners will ignore these lucrative claims -- at the expense of Texas taxpayers.This decision has profound and possibly irreversible consequences for the future of water policy and management in Texas. None of them are good.Short of the state condemning groundwater rights at incredible cost or the court overruling itself in a subsequent case (both of which are incredibly unlikely), the decision will remain the law of the land for the foreseeable future. And 50 years from now, it will likely be cursed by most Texans.Gabriel Eckstein teaches at Texas Wesleyan University School of Law in Fort Worth.