TX Supreme Court Affirms Groundwater Rights

In February, the Texas Supreme Court issued an opinion in the case of Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel. This case addresses the question of whether you as a property owner have the right to use underground water located on your property. Edwards Aquifer Authority utilized a “use it or lose it” approach to a landowner’s ownership rights to groundwater. The effect was to deprive a landowner rights to the groundwater located below their property simply because they had not used it. The Supreme Court of Texas affirmed the landowner’s right to the groundwater stating, “A landowner cannot be deprived of all beneficial use of the groundwater below his property merely because he did not use it during an historical period”. When we see our lakes and streams drying up in yet another Texas drought, it is reassuring to note our private interests in the water located on our property have been recognized by the Texas Supreme Court. As water becomes an increasingly precious commodity, we may see leases related to water rights which are similar to the more familiar oil and gas lease. This decision clarifies groundwater ownership rights, a decision that may prove lucrative for many property owners in the future.