Jan 14 2011
Texas State Senator Troy Fraser, R-Horseshoe Bay, offered legislation (Senate Bill 332) on January 12 to clarify groundwater ownership, saying landowners have a vested ownership interest in the groundwater beneath their property.
The legislation has been filed because some entities are challenging the Rule of Capture in court. The Rule of Capture was established in 1904 by the Texas Supreme Court. The court ruled that groundwater was the private property of a landowner and that a landowner could not be held liable for harming a neighbor’s well by exercising their right to capture the groundwater.
Water management in Texas gradually and in various places has been moving away from capture – a riparian approach – toward a more regulatory appropriation system.
“For over 100 years, landowners have believed that the Rule of Capture gives them a vested private property right in the groundwater beneath their land,” said Fraser. “And, that the property right gives the ability to drill a well and produce groundwater for their use.”
The legislation is intended to work in conjunction with local groundwater conservation district regulation. Under the legislation, groundwater conservation districts could still require a landowner to get a permit and limit the amount of groundwater that can be produced. However, the legislation would prevent a district from “taking” a landowner’s right to capture the water beneath the land.
“Landowners recognize that locally elected groundwater conservation districts play an important role in helping manage water to ensure it is available for future generations,” said Fraser. “But there is a big difference between managing how much water is pumped and denying property owners the right to access the water beneath their land.”
A vested ownership interest is a property right that a landowner can legally protect. The right to produce groundwater is a property right that is exclusively the landowner’s. No one else can come onto private property, drill a well, and start pumping groundwater. If someone were to attempt it, the landowner could legally stop them.
“As Chairman of the Senate Committee on Natural Resources, I believe the issue of groundwater rights needs to be debated by the Legislature.” Fraser said. “The management of this important asset is key to developing the State Water Plan and ensuring that water is available for the future.”