Thursday, February 14, 2013

Taking Groundwater?

Almost exactly one year ago, the Texas Supreme Court issued a decision that ranks—at least by the modest standards of groundwater litigation—as a blockbuster.   In Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), the court held that landowners own property rights in groundwater beneath their land, even before they pump that groundwater, and that restrictions on groundwater use could create a taking.  This caused a stir among water lawyers.  The application of takings doctrine to surface water rights was already a hot topic, particularly following the federal government’s defeat in Tulare Lake Basin Water Storage Authority v. United States, 49 Fed. Cl. 313 (2001).  Day provides a reminder that the water/takings battle also has a growing subterranean front.

The Day decision inspired me to see what other courts have had to say about takings claims involving groundwater.   The answer, it turns out, is quite a lot, and the cases hold lessons for larger debates about water rights and takings.  Those cases and lessons, some ideas for the future evolution of groundwater/takings law, and the reasons why we should care all are summarized in greater detail here.  The article is still a draft, and I welcome reader comments.

-Dave Owen

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