From Essentials of Texas Water Resources:
In Edwards Aquifer Authority v. Day, 274 S.W.3d at 742 (Tex. App.—San Antonio 2008, pet. filed), the court reviewed, among other issues, a summary judgment in favor of the authority on Day and McDaniel’s claim that the operation of the Edwards Aquifer Authority legislation and its decision denying Day and McDaniel’s permit application constituted a taking under Tex. Const. art. I, § 17. The authority has argued that the takings claim failed because the landowner “did not have a constitutionally protected
vested interest in the groundwater.” Day, 274 S.W.3d at 756. The court cited its decision in City of Del Rio v. Hamilton Trust and held that landowners have ownership rights in the groundwater and therefore have a vested right therein. The court further held that the landowner’s “vested right in the groundwater beneath their property is entitled to constitutional protection.” Day, 274 S.W.3d at 756.Either or both of these cases could be reviewed by the Texas Supreme Court. For now they represent the most definitive treatment of the nature of the real property groundwater right.
Edwards Aquifer Authority v. Day was reviewed by the Supreme Court of Texas last week. One of the Amicus Curiae briefs for this case was filed by Russell S. Johnson on behalf of the Texas Wildlife Association. Mr. Johnson is also the author of the chapter, “Groundwater Law and Regulation” found in Essentials of Texas Water Resources.
