February 28, 2012

By Texas Comptroller Susan Combs

February 24, 2012, was an important day for Texas landowners, and for all Texans who care about property rights. On that day, the Supreme Court of Texas issued its opinion in a case called Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel. The court spoke definitively to an issue of enormous importance to all landowners: their right to use the waters under their properties.

As a fourth-generation West Texas rancher myself, I know full well how important that water can be, and what it would feel like if a government agency told you that you couldn’t use the water under your own land.

But too often, that’s just what happens. Conservation goals that could be accomplished with open communication and negotiation between agricultural producers and Texas’ water districts are pursued by administrative edict instead.

I’ve been concerned with this issue for a very a long time. As a legislator in 1995, with the late Senator Teel Bivins, I wrote and passed the Texas Private Real Property Rights Preservation Act, a law that has been called “a basic charter for the protection of private real property rights in Texas.”

The act specifically defined real property as including groundwater rights — rights that shouldn’t be taken away without just compensation.

When government regulations limit your ability to use your land as productively as you can, they’ve cut its value. And when they devalue your land, it’s called a “taking.” Article I of the Texas Constitution says it clearly:

“No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made.” 

It’s a bedrock principle of our state.

It was the issue before the Supreme Court in the Day case: “Whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation” as guaranteed by the Constitution?

The Court looked at how the Edwards Aquifer Authority issues permits based on “the amount of beneficial use” a person’s groundwater has been put to in the past. The Authority was using a “use it or lose it” approach to groundwater ownership based on regulations that say, in effect, that landowners can be deprived of nearly all use of their groundwater simply because they hadn’t used it before.

That’s why I was pleased to file an amicus brief in the case, and even more pleased to learn that the court had supported the landowners involved, concluding “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.”

Now the Supreme Court has set it in stone: you have an ownership interest to the water under your land, just as you do oil or gas. And if state or local authorities want to interfere with your constitutionally protected rights, they have to pay you for it.

This opinion was critical to ensuring the stability of land titles and market value of lands and to the continued sustainability of investments made by communities across the state in acquiring groundwater rights from landowners to support the water supply needs of their growing economies.

As Texas’ population growth continues its breakneck pace, greater demands inevitably will be placed on our precious water resources. These will have to be managed wisely and well through a shared responsibility. But if we ignore private property rights, we’ve lost a fundamental part of what makes Texas what it is.

Fortunately, it looks like we’re staying on the right path.

Susan Combs is Texas Comptroller of Public Accounts. For more information on government regulation and Texas property rights, please visit the Comptroller’s Keeping Texas First website at www.KeepingTexasFirst.org.