1. Water Policy in Texas: Implications for
Landowners and Easement Holders
Stacey A. Steinbach
Texas Alliance of Groundwater Districts
Texas Land Conservation Conference
February 27, 2014

2. GCD Snapshot
Groundwater Ownership
Emerging Issues

3. Starting Point: Rule of Capture
• Adopted as Texas law in 1904 East decision
• Landowners have right to capture an unlimited amount of
groundwater beneath their property
• Called “law of non-liability” and “law of the biggest pump”
• Provides little certainty and no protection

4. Insert the GCD
Conservation, preservation, protection, re
charging and prevention of waste of
groundwater and control of subsidence
Highest practicable level
of groundwater
production

5. History of
GCDs
Source: John Dupnik, BSEACD

6. How GCDs Manage Groundwater
• Contribute to scientific understanding of aquifers
• Educate and inform the community
• Regulate drilling of wells and production of
groundwater
• Participate in joint and regional planning

7. Joint Planning
• DFC = what aquifer will look like in future
• GCDs consider 9 factors (including private property
interests), implement balancing test
• GCDs must manage total groundwater production on
long-term basis to achieve DFC
• Reviewed every 5 years; public participation

8. GCD Snapshot
Groundwater Ownership
Emerging Issues

9. Important Cases
• Houston & Tex. Cent. R.R. Co. v. East
• Pecos County WCID No. 1 v. Williams (Comanche Springs)
• Friendswood Development Co. v. Smith-Southwest Industries
• City of Corpus Christi v. City of Pleasanton
• Sipriano v. Great Spring Waters of America, Inc. (Ozarka)
• Barshop v. Medina County UWCD
• City of Del Rio v. the Hamilton Trust

10. Senate Bill 332 (2011)
• Landowners own groundwater below the surface as
real property
• Landowner entitled to drill for and produce
groundwater, but not a specific amount
• GCDs may limit or prohibit drilling based on spacing or
tract size and regulate production

11. EAA v. Day (2012)
• Well used for farming/recreational use during historic period;
flowed under artesian pressure to tank
• EAA issued permit for 14af rather than 700af
• Issues:
– Did the EAA err in reducing permit?
– Can regulation of groundwater = a taking?
– Did the EAA’s action constitute a taking?

12. EAA v. Day (2012)
• Well used for farming/recreational use during historic period;
flowed under artesian pressure to tank
• EAA issued permit for 14af rather than 700af
• Issues:
– Did the EAA err in reducing permit?
– Can regulation of groundwater = a taking?
– Did the EAA’s action constitute a taking?
No
Yes
???

13. EAA v. Day (2012)
• Rule of capture/ownership in place NOT mutually exclusive
• Property interest in groundwater subject only to rule of capture and
GCD regulations
• Penn Central analysis: economic impacts, investment-backed
expectations, and nature of the regulation
• EAA acted in accordance with EAA Act; did NOT say whether taking
occurred (now settled)

14. EAA v. Bragg (2013)
• Two pecan orchards, only one with historic use
• EAA’s issued one reduced permit and denied other
• Court of Appeals found EAA’s actions to be proper but applied
Penn Central and found taking
• Compensation based on value of property immediately before
and after decision

15. What We Know
• Land ownership includes a constitutionally-protected interest in
groundwater in place that cannot be taken for public use
without adequate compensation
• That interest does not preclude regulation by a GCD in
accordance with Chapter 36 of the Water Code
• Some limitation of groundwater production does not constitute
a compensable taking

16. What We Don’t Know
• How much regulation is too much?
• Is there a distinction between EAA and Chapter 36 GCDs when
it comes to a takings claim?
• How will different “uses” be affected?
• Will there be unintended consequences?
• How are damages are calculated? (but see Bragg)

17. Private Property Considerations
• Penn Central and historic use
• Where does the legacy landowner fit in?
• Surface water / groundwater transfers
• How can/do conservation easements affect
groundwater?
• Aquifer Storage and Recovery

18. GCD Snapshot
Groundwater Ownership
Emerging Issues

19. Coming Soon – 84th Legislature
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•
•
•
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Brackish groundwater
Oil and Gas Exemption
Long-term permitting
Aquifer Storage and Recovery
Well drilling and enforcement
New GCDs

20. Questions?
Stacey A. Steinbach
stacey@texasgroundwater.org
twitter.com/TXTAGD
facebook.com/texasgroundwater