(CN) – Landowners can claim the groundwater underneath their land as personal property, the Texas Supreme Court ruled, in a blow to state regulators.
“We held long ago that oil and gas are owned in place, and we find no reason to treat groundwater differently,” Justice Nathan Hecht wrote for the court.
The ruling affirms the judgment of a lower appellate court and remands the case back to the San Antonio trial court for further proceedings.
A pair of landowners filed suit after failing to obtain a permit to drill a replacement well on their 381-acres ranch above the Edwards Aquifer, which San Antonio uses for water.
The Edwards Aquifer Authority refused to give a permit because it believed that the previous well wasted water. But the landowners claimed they should be compensated for the loss of their right to pump water.
A ruling from the high court Friday restores the farmers’ right to pump the water and gives them ownership of the water below their land.
This is a shift from the court’s ruling in 1904 that adopted the rule of capture and recognized no such rights for groundwater because the movement of groundwater is too “secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would, therefore, be practically impossible.”
Groundwater studies by the Texas Water Development Board, among others, which mapped groundwater flows, rendered that finding obsolete.
Sixteen groundwater authorities areas cover the state, with their borders mirroring those of the state’s major aquifers. Approximately 80 percent of Texas overlies nine major aquifers and 20 minor aquifers, with the major aquifers providing about 97 percent of the state’s groundwater.