Feb 28 2010
A Texas attorney is drawing attention to a recent state supreme court case that could have an effort on a wide range of water rights issues.
In part, the case reflects the strains in a state torn mostly by an appropriation water rights system but with some riparian elements.
The case, Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel, originates from Atascosa County. The Texas Supreme Court describes the case as concerning “(1) whether landowners within the Edwards Aquifer boundaries on the groundwater under their property and (2) whether water from an artesian well that flowed into a reservoir constituted water controlled by state regulations or by the Edwrds Aquifer Authority.”
The court went on, “This appeal arises from Day and McDaniel’s challenge to the aquifer authority’s limited irrigation permit to pump water from a reservoir on their property. In an appeal from the aquifer authority’s permit ruling, the trial court sided with Day and McDaniel, deciding that the reservoir water was aquifer water water subject to the authority’s control. The court of appeals reversed, holding in part that the landowners had a vested right to aquifer water beneath their land but that groundwater flowing into the reservoir was ‘state water’ subject to state regulation.”
In an opinion article, attorney Cynthia Cox Payne said that “On this significant issue of whether property owners have a vested interest in the groundwater beneath the land they own, in addition to EAA and Day and the State of Texas – which was added as a defendant by EAA – 15 different organizations weighed in on this issue in the form of amicus briefs. Some of the amicus briefs were filed by the Texas and Southwestern Cattle Raisers Association, the Texas Farm Bureau, the Texas Comptroller of Public Accounts, the Texas Wildlife Association, the Harris-Galveston Subsidence District and Canadian River Municipal Water Authority, to name a few.”
She also noted some of the far-ranging questions asked by the justices, including:
• “A landowner has some rights (to groundwater), what are they?”
• “Why should we treat water differently than oil and gas?”
• “Texas Water Code §36.002 states: ‘The ownership and rights of the owners of the land and their lessees and assigns in groundwater are hereby recognized …’ So, what ownership is the statute addressing?”
• “Why distinguish groundwater in place from zoning?”
• “If regulation of groundwater is okay, then, what formula should the state use (to set limits)?”
• “If the case went back down, what would the takings claim look like?”
• “If you (litigant Day) prevail, does that open the floodgate to litigation?”