Summary of a Recent
Judicial Development in
Water Law

Groundwater Becomes State Water upon Entering a "Watercourse"

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Edwards Aquifer Authority v. Day, 274 S.W.3d 742 (Tex. App. 2008), the Texas Court of Appeals held that a lake adjoining irrigation applicants' property was a "watercourse," and once well water entered the lake, its character changed from groundwater to state water subject to state regulation.

Background

Applicants sought authorization from the Edwards Aquifer Authority (Authority) to pump 700 hundred acre-feet of water from the Edwards Aquifer to irrigate their crops. Id. at 748. Pursuant to the Edwards Aquifer Act (EAA), applicants must prove, by clear and convincing evidence: "(1) beneficial use of groundwater from the Aquifer by themselves or a predecessor in interest during the historical period, and (2) the amount of water pumped and used without waste during any one year of the historical period." Id. The applicants submitted affidavits of their predecessors-in-interest to establish beneficial use during the historical period, but the Authority found there was "[i]nadequate evidence of irrigation during the historical period" and recommended that the irrigation permits be denied. Id. at 749. An administrative law judge concluded that a creek and lake adjoining the applicants' property were "watercourses," and the water within them was state water. Id. at 750. She further found that the applicants had demonstrated beneficial use of groundwater on only seven acres, and recommended the issuance of an irrigation permit authorizing the withdrawal of just fourteen acre-feet of water per year. Id. On appeal, the trial court reversed and held that the lake was not a "watercourse" and that water taken from it was groundwater rather than state water. Id. However, it also dismissed the applicant's constitutional claims and upheld the Authority's denial of a well construction permit, and both parties appealed. Id. at 750-51.

Arguments

The Authority argued that the lake was a "watercourse," and thus water taken from the lake was state water, rather than ground water. Id. at 751.

The applicants argued that groundwater could not become state water, or that the two could combine without losing their original character. Id. at 754.

Analysis and Holdings

The Texas Water Code provides that "water of ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state," while groundwater, "water percolating below the surface of the earth," is not governed by the state's regulations. Id. at 752. Water becomes state water when it enters a "watercourse," for which the Texas Supreme Court has established the following criteria: "(1) a defined bed and banks, (2) a current of water, and (3) a permanent source of supply." Id. The appellate court explained that "the current does not have to be continuous," the bed and banks can be "slight, imperceptible, or absent," and "even an intermittent flow is sufficient to establish a watercourse." Id. After examining the evidence, the court found that the lake was in fact a "watercourse" and reversed the trial court's ruling concerning the groundwater permit and reinstated the Authority's final order. Id. at 755. However, the court found that the trial court erred in dismissing the applicants' unconstitutional takings claim because their "vested right in the groundwater beneath their property is entitled to constitutional protection." Id. at 756. The court then affirmed dismissal of the applicants' remaining constitutional claims, noting that many were raised for the first time on appeal. Id. at 756-60.

The case was decided on August 29, 2008.