Who Owns The Groundwater Beneath Your Property?

Ownership of groundwater is a hot issue these days. As cities and other populated areas look further afield for thirst quenching supplies, rural lamdowners and their communities have become increasingly proective of their turf, and the water beneath it. This "rural vs. urban" clash is not only the subject of intense litigation and permit-wrangling, but it has now spilled over to the Texas Legislature.

Just last week, State Senator Troy Fraser filed Senate Bill 332, which seeks to amend Chater 36 of the Texas Water Code to prevent groundwater conservation districts from enacting Rules which would divest landowners of their "ownership interest in," or "right to produce" groundwater.

The Bill further provides that a groundwater discrict is prohibited from creating Rules that " discriminate between an owner of land...whose land is irrigated for production" and "an owner of land... whose land was previously irrigated for production and is now enrolled in a conservation program."

Senator Fraser, a Republican from Horseshoe Bay, clearly wrote the short bill for the purpose of making groundwater a "vested property right," which is a departure from the "Rule of Capture," which operates under the principle that ownership of groundwater occurs "at the well head," or when the groundwater is reduced to possession.

We will be watching SB 332 closely, as it will have significant implications on private property rights both from a real estate/surface ownership persepctive, and from the perspective of landowenrs' rights to sell and lease the groundwater beneath their properties.

For more information about groundwater, please see my water law website and water law blog.