Why is the question of ownership of groundwater so controversial?
You would think that since the Texas Supreme Court endorsed the idea more than 100 years
ago that the landowner owns everything beneath his property, down to the center of the earth, and
since that rule has been applied to oil and gas and other minerals for almost that long, that
groundwater conservation districts and others would understand.
Yet, until the Texas Supreme Court handed down its decision in Edwards Aquifer Authority
v. Day in 2012, many groundwater districts and some of the directors of our own Brazos Valley
Groundwater Conservation District continued to argue that the property owner did not own the water
beneath his property. They argued this because they did not want to be forced to compensate
property owners if the districts denied them the right to produce water from beneath their own
property. In the Day case, the Texas Supreme Court made it very clear that compensation will be
required when a property owner’s groundwater rights are taken by governmental regulation.
Recently one of the first “taking” cases since Day was decided in Edwards Aquifer Authority
v. Bragg. The Braggs, who were denied water to irrigate their pecan orchards, recently received an
over $4 million award, including interest, from a jury in Medina County.
It should be clear to both groundwater conservation districts, and those who want to use
groundwater districts to promote their own self-interests, that underground water is the property of
the landowner and you’ve got to either allow him to use it or compensate him for its value if you
prevent him from using it.
Brazos Valley Groundwater Rights Association