Groundwater Ownership Bill a Win for Landowners -- Editorial By Dan Gattis

FORT WORTH (TSCRA) – We have all read the various news accounts during the past several years of government trying to take away our property rights; if not the property itself. It is refreshing, for a change, to finally have government leaders, in the form of the Texas Legislature, affirming and reinforcing the rights we have in our property. This is exactly what CSSB 332, the Groundwater Property Rights Bill, does. No more, no less.

The Texas Supreme Court in 1904 recognized Groundwater, unlike surface water in lakes or streams, as privately owned and subject to the "rule of capture" and has clearly stated in its various opinions that groundwater is part of the owner's land, and therefore has recognized it as a part of the real property bundle of rights.

The necessity of this bill comes because some groundwater conservation districts (GCDs), the very entities that the Texas Legislature entrusted to protect our water, are challenging who owns the groundwater. CSSB 332 doesn't change or cripple, in spite of what some have suggested, the current groundwater management system we have in Texas, as GCDs will still maintain their current authority to issue permits to drill wells, enforce the spacing of wells, and limit the amount of groundwater that can be produced from each well. However, GCDs won't be able to deny landowners the rights they have in their groundwater for no reason.

CSSB 332 amends the Texas Water Code by stating that the Texas Legislature recognizes that a landowner owns the groundwater below the surface of the landowner's land as real property. If that sounds eerily like what the Texas Supreme Court has already stated and what most everyone believes is actually the law, that's because it is. However, that doesn't stop some people from trying to convince you that if this bill passes and becomes law the sky will fall.

The same individuals who are trying to convince you of the dire consequences of this bill most often have an incentive for the law to remain unclear, from the Texas Water Code's perspective. Or, they have a significant difference of opinion from what most Texans believe in when we talk about property rights. Some have even suggested, ironically, that CSSB 332 would allow water marketers or billionaires to mine the aquifers until the water is gone. Well, let me ask the real question. How can I protect the water under my property from just that if the law doesn't, with clarity and certainty, recognize the water under my property as mine? Just trust the government to protect my rights for me? Let me know how that works out for you.

Dan Gattis is a rancher, attorney and former member of the Texas House of Representatives from Georgetown.

This editorial appeared on the website of Horseback Magazine on May 28, 2011.