Saturday, February 25, 2012

TWA on Supreme Court Decision

TWA Applauds Texas Supreme Court Ruling in Support of Property Rights

The Texas Wildlife Association applauds today’s unanimous ruling by the Texas Supreme Court that landowners have an ownership interest in water beneath their land and may be compensated if regulations limit their access to it.

The legal dispute involves a ranch owner who sued when the Edwards Aquifer Authority issued a permit that limited the amount of underground water that could be used. TWA strongly supported the landowner’s position in an amicus brief to the Texas Supreme Court.

“The ruling re-affirms the principle that the landowner owns the groundwater below the landowner’s land as real property. This is a critical principle going forward as private land stewards conserve the natural resources of our state for all Texans. The ruling is a significant victory for all Texas property owners,” said TWA President Glen Webb of Abilene.

The unanimous opinion, written by Justice Nathan Hecht, noted regulation of underground water is essential to conserve a limited resource that provides 60 percent of all water used by Texans.  Even so, the state Constitution’s takings clause, which says no property can be taken for public use without adequate compensation, applies to underground water, Hecht wrote.

The ruling supports the principles of SB 332, approved into law last session by the Texas Legislature. SB 332, strongly supported by TWA as a legislative priority, re-affirmed groundwater as a vested, real property right of Texas landowners.

Click here for a copy of the Court’s ruling.

Posted by Craig Jones in 16:31:12 | Permalink | No Comments »

Friday, February 24, 2012

Hallelujah!!!

TX Supreme Court Rules Groundwater Rights Belong to Landowner 2/24/12

Texas and Southwestern Cattle Raisers Association Press Release
February 24, 2012

TEXAS SUPREME COURT RULES IN FAVOR OF GROUNDWATER RIGHTS

Cattle Raisers Applaud Opinion

Ft. Worth, TEXAS – The Texas and Southwestern Cattle Raisers Association (TSCRA) today applauded the opinion of the Texas Supreme Court in the Edwards Aquifer Authority v. Burrell Day and Joel McDaniel case regarding whether or not landowners own the groundwater below their land.

“The Texas Supreme Court has affirmed that landowners own the groundwater in place below their land and that it is subject to constitutional protection as a property right,” said Joe Parker Jr, rancher and president of TSCRA.

“This opinion is a victory for Texas landowners and will be important for generations to come. It also recognizes the important legislation, S.B. 332, that was passed by the Legislature in 2011” Parker said.

“TSCRA would like to thank the Texas Supreme Court for their diligent efforts in writing this opinion,” Parker continued.

In the opinion, the Texas Supreme Court states:

“…we held long ago that oil and gas are owned in place, and we find no reason to treat groundwater differently.”

“…last year, the Legislature amended section 36.002 [S.B. 332], to set out its fuller understanding of the matter…By ownership of groundwater as real property, the Legislature appears to mean ownership in place.”

“Groundwater rights are property rights subject to constitutional protection, whatever difficulties may lie in determining adequate compensation for a taking.”

“Today we have decided that landowners do have a constitutionally compensable interest in groundwater…”

TSCRA is a 135 year-old trade association and is the largest and oldest livestock organization based in Texas. TSCRA has over 15,000 beef cattle operations, ranching families and businesses as members. These members represent approximately 50,000 individuals directly involved in ranching and beef production who manage 4 million head of cattle on 76 million acres of range and pasture land primarily in Texas and Oklahoma, but throughout the Southwest.

Posted by Craig Jones in 22:08:46 | Permalink | No Comments »

Thursday, June 2, 2011

Groundwater ownership bill passes house unanimously

SB 332 has passed both the Senate and the House and is now in the hands of Governor Perry to be signed into law!

from the Gonzales Inquirer:

AUSTIN – Legislation to strengthen landowners’ ownership of the groundwater below their land passed the Texas House, clearing a major hurdle. The legislation now goes back to the Texas Senate for final approval before heading to the Governor’s desk.

SB 332, by Sen. Troy Fraser (R-Horseshoe Bay) and Rep. Allan Ritter (R-Nederland), clarifies that groundwater below a landowner’s land is their real property, meaning it is subject to the same legal protections as other private property such as land.

Strengthening groundwater ownership for landowners has been a top priority for the Texas and Southwestern Cattle Raisers Association (TSCRA) this legislative session, said Joe Parker Jr., rancher and TSCRA president.

“Landowners have owned the groundwater under their property for more than 100 years, but our rights have recently been challenged,” said Parker. “SB 332 puts to rest any question of who owns the groundwater below a landowner’s property.”

SB 332 clarifies that landowners own the groundwater below their land as real property. The bill entitles landowners to drill for and produce the groundwater below their land without waste. It recognizes that this private property right may be regulated, like other private property rights, to protect and conserve groundwater, and it ensures fair and impartial regulation of a landowner’s rights in groundwater.

“We appreciate the hard work of Chairman Fraser, Chairman Ritter, and the rest of the Texas Legislature. We look forward to SB 332 becoming law,” Parker continued.
 
The Texas and Southwestern Cattle Raisers Association is a 134-year-old trade organization. As the largest and oldest livestock association in Texas, TSCRA represents more than 15,000 beef cattle producers, ranching families and businesses who manage approximately 4 million head of cattle on 51.5 million acres of range and pasture land, primarily in Texas and Oklahoma. TSCRA provides law enforcement and livestock inspection services, legislative and regulatory advocacy, industry news and information, insurance services and educational opportunities for its members and the industry.

Posted by Craig Jones in 22:17:41 | Permalink | No Comments »

Wednesday, February 23, 2011

Senate Bill 332

TSCRA Action Alert

IMPORTANT ALERT ABOUT GROUNDWATER OWNERSHIP AT THE STATE CAPITOL
Action needed TODAY!

Now is the time for landowners across Texas to unite and send a clear message to government that we want our property rights in groundwater below our land reaffirmed and recognized.

Many GCDs are trying to make the argument that landowners do not have a property right to the groundwater beneath their land.  They’ve taken this argument to court, and if they succeed there is nothing stopping government from taking the groundwater beneath your land.

SB 332 would prevent this by clarifying once and for all that landowners have an ownership interest in groundwater beneath their land and a right to capture it.  It is critical that SB 332 this become law.

TSCRA needs your help to make this happen.

First, make plans to be in Austin next Tuesday, March 1 at 9 a.m. for a public hearing on SB 332.  We need as many people as possible to testify in front of the committee.  If you can be here, please email Jason Skaggs at jskaggs@tscra.org or call the Austin office at 512-469-0171.

Second, call members of the Senate Committee on Natural Resources and ask them to support SB 332.  Contact information for committee members is below.  Click here for talking points regarding the bill.

Sen. Troy Fraser, Chairman (bill’s author), 512-463-0124
Sen. Craig Estes, Vice Chairman, 512-463-0130
Sen. Bob Deuell, 512-463-0102
Sen. Robert Duncan, 512-463-0128
Sen. Kevin Eltife, 512-463-0101
Sen. Glenn Hegar, 512-463-0118
Sen. Juan Hinojosa, 512-463-0120
Sen. Mike Jackson, 512-463-0111
Sen. Robert Nichols, 512-463-0103
Sen. Kel Seliger, 512-463-0131
Sen. Carlos Uresti, 512-463-0119

It’s Your Land!  It’s Your Water!

Posted by Craig Jones in 21:33:57 | Permalink | No Comments »

Thursday, February 10, 2011

Rancher/Attorney Backs Senate Bill To Codify Water Ownership

By Ben Love

Livestock Weekly, Feb. 3, 2011

(Ben Love is a Brewster County rancher and attorney specializing in real estate and natural resources law.)

Ask any rural Texas landowner, “Who owns the water under your land?” and the answer will be a resounding, “I DO.” Recently however, some groundwater conservation districts and the Edwards Aquifer Authority have taken the position that landowners do not own the groundwater under their land.

Texas groundwater law has a long and seemingly clear judicial history of affirmation of ownership by the surface owner. As early as the 1904 case of Houston & Central Texas Railway Co. v. East the Texas Supreme Court established the Absolute Ownership Rule of groundwater ownership. In East, the Court reasoned that the owner of the land was the “absolute owner of the soil and percolating water (groundwater), which is a part of, and not different from the soil, and that groundwater is the same as the land and cannot be distinguished in law from the soil.” The East case has been long relied upon in Texas and has never been overturned.

Over the past 10 years or so, GCDs have proliferated across the Texas landscape with about a hundred currently in existence. Most are doing exactly what they were created to do, regulate to promote management and conservation of groundwater within their district boundary. Unfortunately, some GCDs are now concerned about the absence of a clear-cut bright line defining how far they can go in the regulation of groundwater before becoming liable to landowners for money damages for going too far. The vested ownership of groundwater in place forms the basis of their concerns, and absent such vested ownership rights, there would be no limit to the extent they could regulate without liability to anyone.

A new, untested theory has been put forth which could clear the way for GCDs and the EAA to be absolved of all liability for over-regulating groundwater. Simply put, they don’t deny that landowners have ownership rights in groundwater, but they creatively contend that ownership only vests when the water is produced on the surface under the Rule of Capture, not when the water is in place under the surface. This novel theory, if adopted either directly or indirectly by the State of Texas, would essentially remove all hurdles for complete control of groundwater by GCDs and the EAA.

Greg Ellis, the former executive director of the Texas Alliance of Groundwater Districts and former general manager of the Edwards Aquifer Authority, has repeatedly stated his belief that “Groundwater is like the clouds; no one can actually own it.”

On January 12, State Senator Troy Fraser, R-Horseshoe Bay, filed Senate Bill 332, which would clarify the ownership of Texas groundwater by the surface owner. SB 332 states that landowners have a vested ownership interest in the groundwater beneath their property while recognizing the role locally elected groundwater conservation districts play in helping manage and conserve it. Senator Fraser noted that “a vested ownership interest is a property right a landowner can legally protect, and the right to produce groundwater is a property right that is exclusively the landowner’s. No one else can come onto private property, drill a well, and start pumping groundwater. If someone were to attempt it, the landowner could legally stop them.” The purpose of SB 332 is simply to clarify this in the Texas Water Code.

The opposition to SB 332 is already fierce in some quarters of the state, with some GCDs claiming its passage would herald a flood of regulatory “takings” lawsuits against groundwater districts. The fear of regulatory takings litigation is the underlying basis of the theory that no one owns groundwater. This theory is based on the premise that if no one owns it, then no one can maintain a cause of action against any water authority for compensatory money damages as a result of over-regulating it. However, nothing contained in SB 332 can be remotely construed to alter existing Texas law with respect to regulatory takings claims and in no way denies ground water districts the right to reasonably regulate groundwater.

Both the federal and Texas Constitutions prohibit the government, or political subdivisions thereof, from taking private property without paying just compensation. What is a “taking”? A taking may occur as a result of government occupation of private property or as a result of over-regulation of private property.

Several factors are considered to determine whether a taking has occurred, including whether the regulation has destroyed all economically viable use of the property, if it unreasonably interferes with the use and enjoyment of the property, the character of the regulatory action, and whether the regulation substantially advances legitimate state interests. Takings are extremely difficult to prove in court. But perhaps the greatest practical factor shielding groundwater districts from unwarranted takings claims is found in Section 36.066(g) of the Texas Water Code. This section provides that if the groundwater district prevails in a suit, the claimant may be liable for all the district’s attorney fees, expert witness fees, costs of court, and other costs.

Before filing a takings lawsuit, any takings claimant must take into consideration the fact that if he prevails at the district court level, he can almost be assured that the agency will take the case up on appeal, and the associated costs will begin to skyrocket. This is not a gamble to be taken lightly by a claimant and is likely the reason Texas courts have tried relatively few water takings claims.

The important issue of ownership of groundwater is often confused with the longstanding Texas Rule of Capture. In a recent appellate court decision, the San Antonio Court of Appeals affirmed that the Rule of Capture is “a doctrine of non-liability for drainage, not a rule of property.” It simply means that a landowner whose property is being drained of groundwater by his neighbor has no judicial remedy, and contrary to popular belief, it does not mean that the landowner does not own the groundwater beneath his land until he produces it at the surface. It is not the Rule of Capture that is under attack in Texas, but the ownership of groundwater in place.

Reversing the historic Absolute Ownership Doctrine of private ownership of groundwater in Texas would result in chaos in state law. Wilson Scaling, formerly the chief of the Natural Resources Conservation Service and rancher from Clay County, questions, “If the landowner doesn’t own the groundwater under his land, then who does? And, what then would happen to the more than one hundred years of water law in Texas based on that premise?”

If landowners expect the answer to “Who owns the water under your land …” to continue to be a resounding “I DO!”, it is extremely important to urge your state senator and representative to support SB 332.

Posted by Craig Jones in 19:08:27 | Permalink | No Comments »

Vested Ownership

It is quite difficult to make a legitimate and meaningful argument against groundwater in place as private property that is consistent with other aspects of private ownership within our state.  In attempting to make their case, those against the Vested Ownership Doctrine often allude to water as having a status that is more important than other commodities in that it is vital for the preservation of life, of which the latter point is obviously correct.  The extension of this argument being that we cannot leave something of such importance up to the whims of the free market.  This line of reasoning is, of course, anathema to the very political and economic system in which we live.  Food is a necessity of life and we have no trouble leaving this to the private sector.  Energy is, without a doubt, a vital necessity for modern life and, here again, we have no qualms with leaving this to the private sector.  The list goes on to include clothing, shelter, medicine and etc.  The jury has long been in on the advantages of capitalism vs. socialism.  Why would we doubt that outcomes would be different in this case?

Senator Fraser should be applauded for sponsoring SB 332 as he is acting as a representative of his constituents should act.  He is listening to the voices of the people and moving forward in the direction that those voices are leading him.  SB 332 has the support of over a dozen organizations who represent a broad array of Texans to include ranchers, farmers, lumbermen, mineral owners and many more.  It is interesting to note the absence of a similar coalition of private citizens making the case that the state, in fact, owns the groundwater in place; which is the opposite argument.

A few final points:

  • It is taken as fact that Texas faces a water crisis in the near future; where is the empirical evidence?  Commodity crises result from imbalances in supply and demand.  It is hard to imagine that such an imbalance is eminent given the low selling price of municipal water and that we continue to use purified, treated drinking water in our toilets, on lawns, in car washes and various other industrial uses for which gray water would be entirely sufficient.  Perhaps the looming “water crisis” should be reframed as a potential shortage of fresh, clean water that is so cheap that it is okay to waste.
  • We assume that the system of groundwater management by GCD’s will result in an efficient process that will result in the equitable treatment of all parties.  If you are familiar with the system at all, you will know that GCD’s are created along political boundaries, not aquifer boundaries, and that each GCD has a different set of DFC’s, District Rules, Pumping Regulations and Quantities, etc.  It is hard to imagine that such a system would result in A) an efficient process, B) an equitable process or C) a process that achieves desired results, which still remain undefined.  And, while on this note, it is worth asking when government control of a commodity has ever worked.
  • Applying the Historical Use Doctrine to allocating groundwater usage is at least unfair and perhaps confiscatory.  If our goal is, in fact, to conserve groundwater, then why would we apply a management practice that rewards those who have, historically, used more than their neighbors? Suppose you farm rice and you use 50″ of water per year in irrigation.  Your neighbor, on the other hand, has historically run livestock and only used a very small amount of groundwater.  Your neighbor decides he wants to plant a pecan orchard as an investment for his children and will need to significantly increase his water usage.  The GCD says no!  You have not used it historically so you don’t get it now.  The rice farmer continues to get his 50″ just across your fence.  You, on the other hand, get only a tiny fraction of that amount while you paid the same for your land and you pay the same (or maybe even more) in property taxes.  The upshot is that we should all pump as much water as we can as fast as we can so that we will set a high standard for our historical use calculation.

In summary, everyone who is highly involved with the debate over groundwater ownership and usage has, at some level, an economic interest in the outcome.  In America, the best way to settle such economic matters is via the private sector.  Let us not be afraid to treat water the same way we treat food, energy and clothing.  It will work out just fine.

Sincerely:
Craig Jones
Board Member, Fox Crossing Water District

Posted by Craig Jones in 19:07:07 | Permalink | No Comments »

Thursday, January 13, 2011

On the Right Track!

This is a great start for Senator Fraser as the new Chairman of the Senate Committee on Natural Resources.  Please contact his office and let them know that you definitely support his bill and the Vested Rights Ownership Doctrine!


FOR IMMEDIATE RELEASE

Contact: Janice McCoy

January 12, 2011

(512) 463-0124

FRASER FILES WATER RIGHTS MEASURE

State Senator Troy Fraser, R-Horseshoe Bay, authored legislation on Wednesday, January 12 which would clarify groundwater ownership. Senate Bill 332 would clearly state that landowners have a vested ownership interest in the groundwater beneath their property.

The legislation has been filed because some entities are challenging the Rule of Capture in court. The Rule of Capture was established in 1904 by the Texas Supreme Court. The court ruled that groundwater was the private property of a landowner and that a landowner could be held liable for harming a neighbor’s well by exercising their right to capture the groundwater.

“For over 100 years, landowners have believed that the Rule of Capture gives them a vested private property right in the groundwater beneath their land,” said Fraser. “And, that the property right gives the ability to drill a well and produce groundwater for their use.”

The legislation is intended to work in conjunction with local groundwater conservation district regulation. Under the legislation, groundwater conservation districts could still require a landowner to get a permit and limit the amount of groundwater that can be produced. However, the legislation would prevent a district from “taking” a landowner’s right to capture the water beneath the land.

“Landowners recognize that locally elected groundwater conservation districts play an important role in helping manage water to ensure it is available for future generations,” said Fraser. “But there is a big difference between managing how much water is pumped and denying property owners the right to access the water beneath their land.”

A vested ownership interest is a property right that a landowner can legally protect.  The right to produce groundwater is a property right that is exclusively the landowner’s.  No one else can come onto private property, drill a well, and start pumping groundwater.  If someone were to attempt it, the landowner could legally stop them.

“As Chairman of the Senate Committee on Natural Resources, I believe the issue of groundwater rights needs to be debated by the Legislature.” Fraser said. “The management of this important asset is key to developing the State Water Plan and ensuring that water is available for the future.”

–30–Senator Fraser represents a 21-county region in the geographic center of the state. He is the Chairman of the Senate Committee on Natural Resources. He also sits on the following standing Senate Committees: Business and Commerce, Nominations, State Affairs, and International Relations and Trade.


It’s Your Land. It’s Your Water

Posted by Craig Jones in 16:32:31 | Permalink | No Comments »

Monday, August 23, 2010

SHEEP AND GOAT RAISERS’ VOICE TO BE HEARD

TEXAS SHEEP AND GOAT RAISERS’ ASSOCIATION

#1 – NATURAL RESOURCES – WATER

Whereas, the Texas Sheep & Goat Raisers’ Association shares common goals in property rights, water rights, and other issues with Texas & Southwestern Cattle Raisers’ Association, Texas Farm Bureau, Texas Wildlife Association and others,

Now, therefore, be it resolved that the Texas Sheep & Goat Raisers’ Association hereby agrees to and joins with the above organizations in a joint statement on vested water rights and water management.

#2 – NATURAL RESOURCES – WATER

Whereas, Texas landowners have always subscribed to the principle that the land they owned as well as what was below it or above it belongs to them, and this “heaven to hell” ownership principle originated from the ancient Roman civilization; and

Whereas, the Texas court system has continually reaffirmed for more than 100 years that landowners have a vested property right in groundwater in place; and

Whereas, the State legislature has recognized local groundwater districts as the best method for groundwater management; and

Whereas, recent challenges to this vested right principle offer a change to more public ownership of this vital resource; and

Whereas, private ownership promotes conservation and protection, and public ownership promotes waste, misuse, lack of management and conservation; and

Whereas, groundwater as a vested property right is in the best interest of conservation, management, protection and beneficial use,

Now, therefore, be it resolved that the Texas Sheep & Goat Raisers’ Association supports the principle of groundwater as a vested property right as a part of the whole of property rights and supports the local approach to groundwater management.

Posted by Craig Jones in 20:48:04 | Permalink | No Comments »

Tuesday, August 3, 2010

MORE EVIDENCE THAT LOCAL CONTROL IS A MYTH

If you consider a meeting of representatives of  nine (9) different counties to be a “local” meeting, then you can continue calling the Texas approach to groundwater management a “local” process.  That is how the “GMA” system works and some of the recent decisions that have come out of GMA-9 (located to our South) are going to have very real economic consequences at some point.  This article in the San Antonio Express News, and this related article in the Boerne Star, describe how board members of GMA-9 have set groundwater usage targets out to the year 2060 that have the potential to limit growth and economic development in that region over at least the next 50 years.  If you realize, on the other hand, that places like Mills County are now lumped in with 43 other counties from as far away as Texarkana (GMA-8, see map) then you can see that we have allowed the concept of “local” control to slip completely out of reach.

Make no mistake, the plan in effect and orchestrated by the State is to manage our groundwater resources at the GMA level.  At least GMA-9 is a small geographic area that covers nine counties that do have similarities.  We, in Mills County and GMA-8, find ourselves in a much worse predicament.  Not only does our GMA cover an enormous geographic area that stretches mostly to the North and East all the way to the Red River, but we have to try and “plan” aquifer management with representatives from areas with vastly different usage profiles than ours, such as the DFW Metroplex, Waco, Temple/Killeen, Round Rock and the oil and gas fields of the Barnett Shale in North Texas (note: oil and gas exploration is exempt from groundwater management policies and from any district rules.  Wonder how that happened?)

The groundwater management process that we Texans are now embarked upon is, at some point, going to have very real, and very dear, economic consequences.  Somewhere, somehow, someone is going to be denied access to water…period!  When that happens, the entity denied is going to suffer an economic loss as, undoubtedly, the water requested will be used for some commercial use.  And, “commercial use” doesn’t have to mean use by some faceless corporate behemoth; it could very well mean you.  You might want to plant a peach orchard.  You might want to irrigate a coastal field.  You might want to pump water into a tank for wildlife.  You might want to start a small business, any business, that is going to need even a little bit of water.  You will be the one denied access to water beneath your land.  You will be the one told that, No; you cannot start a new business because you cannot have any more water.

When this happens, do you think anyone will be cut off in Dallas? How about Waco or Killeen or Round Rock?  Will water be cut off to energy companies drilling for natural gas?  Will the golf courses in the city still be watered?  Will urban dwellers continue to use purified city drinking water for toilets and car washes?

Is there any logical way to call GMA-8 a local organization?

Please support the Texas and Southwestern Cattleraisers Association, the Texas Wildlife Association, the Texas Farm Bureau, Fox Crossing Water District and a host of other organizations in pushing for the reaffirmation of groundwater as a Vested Property Right.

Posted by Craig Jones in 14:52:09 | Permalink | No Comments »

Saturday, July 17, 2010

TSCRA, TWA, TFB TO HOST GROUNDWATER MEETINGS

TSCRA News Update, July 13, 2010

Attend a Joint Issues Forum on Groundwater Ownership

TSCRA, Texas Wildlife Association and Texas Farm Bureau have formed the coalition Texans for Groundwater Rights and are collaborating with other organizations to reinforce the concept that groundwater is a vested, real property right in Texas.

TSCRA, TWA and TFB will host, on Aug. 31, the first of several forums on groundwater around the state. The forums should last a couple of hours and present the facts in the groundwater ownership debate.

The forums are free. For more information, contact Jason Skaggs, TSCRA executive director of government affairs, at 512-469-0171.

Mark these dates on your calendar now! More information will be available in the coming weeks.

Aug. 31
Texas AgriLife Research and Extension Center
7887 US Hwy 87 N, San Angelo

Sept. 22
Producers Cooperative
1800 N. Texas Avenue, Bryan

Oct. 14
Johnson County Cattle Auction
3119 N. Main Street, Cleburne

Oct. 19
Caesar Kleberg Wildlife Center
1730 W. Corral, Kingsville

Oct. 20
First Victoria Bank
101 S. Main, Victoria

Oct. 28
Merket Alumni Center
17 and University, Lubbock

Nov. 11
Capitol Extension Auditorium
E1.004, 112 E. 11 Street, Austin

All workshops except Kingsville will be 1:30 p.m. to 4:00 p.m. Kingsville will be 6:30 p.m. to 9:00 p.m.

Posted by Craig Jones in 16:05:23 | Permalink | No Comments »