Landowners have constitutional right to be compensated for water, Supreme Court opines

David Yates Feb. 28, 2012, 3:59am

AUSTIN - Texas landowners received a huge boost from the state's Supreme Court last Friday, when justices ruled land ownership includes an interest in groundwater that cannot be taken for public use without adequate compensation.

In 1994, R. Burrell Day and Joel McDaniel bought 381.40 acres to grow oats and peanuts and graze cattle. The land overlies the Edwards Aquifer, an underground layer of porous, water-bearing rock, 300-700 feet thick, and five to 40 miles wide at the surface, that stretches in an arced curve from Brackettville, 120 miles west of San Antonio, to Austin, court records show

In 1996, Day, who is now deceased, and McDaniel sought a permit to pump from the Edwards Aquifer. However, they were unable to establish "historical use" -- the method the authority uses to allocate water -- and were granted a permit for only 14 acre-feet, court papers say.

Demanding compensation for the loss of the right to pump water on their own land, the two men filed suit against the Edwards Aquifer Authority, arguing that the entity's limiting of water use violated their constitutional rights.

The authority maintained that it should not have to pay for reasonable restrictions on how much a landowner can pump from the aquifer.

Following several years of litigation, on Feb. 24 the Supreme Court affirmed the judgment of the Fourth District of Appeals and remanded the case to the district court for further proceedings.

The justices found that the taking of water below a property owner's land without compensation, even for public use, was a violation of the Texas Constitution.

"Whether groundwater can be owned in place is an issue we have never decided," states the court's opinion. "But we held long ago that oil and gas are owned in place, and we find no reason to treat groundwater differently."

While Texas property owners might consider the ruling a victory, some environmental groups have publicly stated that without proper water regulation, the surrounding environment and wildlife will suffer.

San Antonio attorney Tom Joseph represents Day and McDaniel.

Assistant Attorney General Brian Berwick represents the state.

Supreme Court case No. 08-0964

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