Friday, March 8, 2013
Quality Scholarship on the Issue of Property Rights in Groundwater
This article was posted on the Environmental Law Prof blog recently. I'll bite on anything that discusses the nature of property rights in groundwater and this article is a very good one. The author is a former scientist (geologist) turned lawyer (now law professor), so we have something in common. It's a very thorough discussion of how groundwater rights are treated in the context of takings jurisprudence, using last year's decision (pdf) from the Texas Supreme court in the case of Day v. Edwards Aquifer Authority as the jumping off point. At the time the ruling came down there were many (myself included) who felt it was a blow to prospects for sensible groundwater regulation in Texas. Finding that landowners have a constitutionally protected right (potential) to groundwater in situ is a strange concept in nearly every state in the U.S. except Texas. But Prof. Owen believes that this is not a death knell for future regulation of groundwater use. He believes that property rights in groundwater and sensible regulation of those rights can co-exist. I hope he is right.