SB 332 on private groundwater rights is in trouble. With the excuse of unknown unwanted consequences, opponents to the bill and to our property rights are blocking the bill.
SB 332 confirms only what the Texas legislature and courts have affirmed over the past 100 years: water underneath a property belongs to the landowner!
Also, SB 332 would treat groundwater as oil and gas. Current law about oil and gas has not prevented the Texas Railroad Commission to regulate them: therefore, ownership of groundwater under the same conditions will not prevent groundwater districts from regulating it either.
Opponents to SB 332 also fear that landowners will bankrupt the districts with lawsuit; however, our eminent domain laws and our Fifth and Fourteenth Amendments have never bankrupted government agencies and municipalities.
Please find below a well-written article by Texas Farm Bureau State Legislative Director Billy Howe.
PLEASE TAKE ACTION!!
Please call immediately the members of the House Committee of Natural Resources and ask them to support and pass SB 332 out of committee and tell them how vital it is for you as a landowner and an Ag producer!!! Feel free to use the article below for help and talking points.
House of Natural Resources
Chair: Alan Ritter (512) 463-0706
Voce Chair: Tracy O. King (512) 463-0194
Representative Marva Beck (512) 463-0508
Representative Brandon Creighton (512) 463-0726
Representative Chuck Hopson (512) 463-0592
Representative Jim Keffer (512) 463-0656
Representative Lyle Larson (512) 463-0646
Representative Eddie Lucio III (512) 463-0606
Representative Trey Martinez Fisher (512) 463-0616
Representative Doug Miller (512) 463-0325
Representative Walter “Four” Price (512) 463-0470
Groundwater rights bill threatened
By Billy Howe
TFB State Legislative Director
It is often said that there are hundreds of ways to kill a bill, but only one way to pass it.
One of the most effective means to polish off legislation is to cause enough confusion that time runs out on it. That is the tactic currently being employed by opponents of SB 332 by Sen. Troy Fraser, the bill to reaffirm that landowners have a constitutionally-protected right to the groundwater beneath their land.
Although the Texas Supreme Court has said repeatedly—at least four times since 1904—that the landowner “owns” the groundwater under “his own land,” opponents of SB 332 continue to claim that groundwater cannot be “owned” by the landowner until it is actually “reduced to possession.” Because groundwater can move from property to property, opponents claim the landowner can’t own it beneath the surface. Those claims have been rejected by the Texas Supreme Court since 1915. The court has ruled that if groundwater is in your soil, you own it while it is there. You have a right to capture it. And, that right to capture what you own is a vested property right.
Even though both the U.S. and Texas Supreme courts have repeatedly ruled for over 100 years that government can extensively regulate “vested” property rights, opponents continue to claim that SB 332 will prevent regulation of groundwater. However, the “vested” property right in oil and gas hasn’t prevented the Railroad Commission from requiring permits to drill wells, spacing of wells, or limiting the amount of oil and gas that can be produced from each well. Each of these requirements used by the Railroad Commission is also used by groundwater conservation districts. Why can the Railroad Commission regulate vested property rights, but groundwater conservation districts can’t?
Opponents say that they fear lawsuits will bankrupt the districts. If landowners can bankrupt local government by filing “takings” lawsuits, then why isn’t every city and town in Texas bankrupt? They all restrict landowners’ vested property rights. Shouldn’t there be a “flood” of litigation against them?
It is expensive and difficult to sue government for a taking, so landowners don’t. Ninety percent of the time, the court rules against the landowner. That is why there is no “flood” of takings claims against government regulation. Groundwater districts would be no different. Also, groundwater districts have a protection under the law that other government entities don’t. If you sue them and lose, you pay their attorney’s fees. That is a one-way protection. If the landowner wins, the district doesn’t pay his attorney’s fees.
Texas Farm Bureau will continue to work hard to clarify the “ownership and rights” of landowners in the groundwater debate by supporting SB 332. If the opposition is successful with their focus on “unintended consequences,” we know what the real outcome will be—landowners will be in jeopardy of losing their right to the groundwater under their land.
Opponents of SB 332 have asked for examples of where landowners will be denied their right to groundwater. If anyone needs proof, all they have to do is look at the list of groundwater districts, groundwater district lawyers, and “historic” users who have testified against SB 332. If there wasn’t a problem to be fixed, then why would they be opposed to recognizing that landowners have a constitutionally-protected property right in the groundwater beneath their land?
SB 332 answered its critics and passed the Texas Senate by a 28-3 margin. We will work hard to ensure its success as it winds its way through the House.
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