DO YOU OWN THE WATER UNDER YOUR LAND?
If you don’t, Who does? 
Landowners in the towns of Floresville, La Vernia, Poth and Stockdale have traditionally been either farmers or cattle ranchers until the last 10-15 years. Many of the people in Wilson county have been here for generations but a new era has arrived. We are so close to San Antonio that many, many people are moving here. This migration began about 25 years ago but really started to escalate in the last 5 years due to cheaper land prices and subdivisions being developed with acreage. People who move into subdivisions do not question things such as who OWNS the water under their land as it is not a really important topic for them. Nor do they question mineral rights as the property developer almost always retains the mineral rights.
But if you were to ask most large landowners in this area the above question, most would answer that they do. But that may not be the case anymore if the underground water districts can change it. As the daughter of a farmer and cattle rancher, water has always been an important part of my life so this topic drew my attention.
Precedent has long been a case in 1904 that has long been relied upon. It is the case of Houston & Central Texas Railway CO vs East. At that time the TEXAS SUPREME COURT established the Absolute Ownership Rule of groundwater ownership. The court reasoned that the owner of the land was the absolute owner of the soil and percolating water, which is a part of, and not different from the soil, and the groundwater is the same as the land and cannot be distinguished in law from the soil.
Groundwater conservation districts (GCD) now number about 100 in Texas and for the most part do a good job. The local GCD for Wilson county has been very good in representing the citizens interest in the past when San Antonio wanted to buy our water.
Wilson County is in the Evergreen Underground Water Conservation District while San Antonio is in the Edwards Aquifer Authority. Edwards is a well known UWCD because of many news stories in the past. Controversy about the snail darter and if it was endangered was a big topic in the past. Much of their recapture zone is north of San Antonio in the rocky areas of the state. Evergreen UWCD is in the parts of the state that are less rocky and have more sand so our capture is different.
Our farmers were up in arms when they felt their water was threatened by SAWS (San Antonio Water Systems) wanting to purchase and hold water for times of water shortage in Bexar County. If SAWS is storing Bexar, Atascosa and Wilson County water for use in Bexar county, how does the citizenry of Wilson County know that we will be able to maintain our water for our needed use. At that time many of the farms were irrigated and farmers were concerned about their water tables dropping. The other issue that was hotly debated was for the southern border of Bexar county which affected about 3,000 acres was the SAWS aquifer storage and recovery (ASR). The ASR project, years in development, envisions the wet-season storage of excess Edwards Aquifer water in a small portion of the Carrizo Aquifer for withdrawal in drought. The Carrizo Aquifer is located in the Evergreen aquifer rather than the Edwards Aquifer and has a different composition.
San Antonio Commission court’s resolution said the ASR project would be of “significant benefit to the citizens of Bexar County” and all who rely on the Edwards Aquifer.
Concerned southern Bexar county landowners petitioned Evergreen UCWD for annexation to protect their Carrizo wells. These landowners were concerned about the water draw down and how it would affect them.
In 2002, SAWS and Evergreen came to an agreement with SAWS agreeing to operate under the restrictions of the Evergreen UCWD with specified pumping limits.
The former executive director of the Texas Alliance of Groundwater Districts and general manager of the Edwards Aquifer Authority, Greg Ellis has repeatedly stated his belief that “Groundwater is like the clouds, no one can actually own it.”
So the issue of water rights has long been a major player in Texas.
To address this issue, Senator Troy Fraser has introduced a bill to clarify the surface owner’s Texas groundwater ownership.This is the press release from Senator Troy Fraser’s office:
For Immediate Release
February 22, 2011
Contact: Janice McCoy
(512) 463-0124
Fraser Passes Water Rights Measure
Austin — Senate Bill 332 by State Senator Troy Fraser, R-Horseshoe Bay, was adopted by the Senate Committee on Natural Resources on Tuesday, March 22, 2011. Under SB 332, the Texas Legislature recognizes that a landowner has a vested ownership interest in the groundwater below the surface as an interest in the landowner’s real property.
“The right to produce groundwater from beneath your property is one of the most basic of all property rights,” Fraser said. “This right was reaffirmed in 1904 when the Texas Supreme Court ruled that groundwater was the private property of a landowner and that a landowner could not 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 Texas Supreme Court gave them a vested private property right in the groundwater beneath their land,” said Fraser. “And, that the ownership interest gives them a constitutionally-protected right to drill a well and produce groundwater for their use.”
The vested ownership interest outlined in SB 332 entitles the landowner to a fair chance to produce the groundwater below the surface of real property but would not entitle a landowner to the right to capture a specific amount of groundwater. It also would not affect the existence of common law defenses or other defenses to liability under the Rule of Capture.
The legislation is intended to work in conjunction with local groundwater conservation district regulation. The substitute language adopted by the committee clarifies that groundwater districts continue to have the same authority granted to them under Chapter 36 of the Water Code to regulate and conserve groundwater.
“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.”
“This was an important step forward,” 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.”
This bill went to the Texas House on March 30.
Opposition to the bill involves some GCDs stating it could lead to taking lawsuits without the payment of just compensation. This is a complex issue that can be addressed in another article.
Texans who want to keep the answer “I do” are urged to support SB332.