When does a Texas water authority need county approval to buy groundwater?

Plain-English summary

Senator Craig Estes, who chaired the Senate Committee on Agriculture, Rural Affairs and Homeland Security, asked the Attorney General about a 2013 law governing how the Red River Authority buys groundwater. That law, Senate Bill 281, says the Authority may purchase "groundwater rights" in a county within its territory, and that if the county is not inside a groundwater conservation district, the Authority may do so only if the county commissioners court approves the purchase. The Authority buys potable water that the city of Vernon has already pumped, and pipes it to water systems in Wilbarger County. The dispute was over what the phrase "purchase of groundwater rights" covers. The county read it broadly, arguing that any purchase or use of underground water in the county needs commissioners court approval. The Authority read it narrowly, saying the law reaches the acquisition of groundwater rights, not every purchase of water.

The AG worked from the text of the bill. The bill never defines "groundwater rights," so the opinion looked at how Texas law uses the term. As a general matter, a landowner owns the groundwater below the surface as real property, and that ownership carries the right to drill for and produce the water. So "groundwater rights" in the bill at least includes that right to drill and produce. The harder question was whether buying water that has already been pumped out of the ground is the same as buying "groundwater rights." The AG concluded it is not automatically the same. The plain language of the bill distinguishes groundwater as a commodity from groundwater as a property right, and when the Legislature amended the Authority's enabling law it kept the phrase "underground water or underground water rights," treating the two as different things. Many other Texas statutes draw the same line between "water" and "water rights." Because the bill subjected only the purchase of "rights," not of "water," to commissioners court approval, the AG concluded that not every purchase of water by the Authority triggers the approval requirement.

That did not end the matter cleanly. The Legislature did not spell out what else "groundwater rights" might include beyond the right to drill and produce. So the AG concluded a court would likely require commissioners court approval where a purchase of groundwater entitles the Authority to drill for and produce the water below the surface in a county without a conservation district. Whether a contract that does not convey that drilling-and-producing right nonetheless transfers a "groundwater right" needing approval, the AG said, can only be decided by looking at the particular contract, and construing contracts and resolving fact questions are outside what an attorney general opinion does. A footnote also noted that because the bill took effect September 1, 2013 and statutes are presumed to operate only going forward, a groundwater-purchase contract entered before that date would not be affected by the bill.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Senator Estes and the committee (as the opinion described it): The opinion answered that not every purchase of groundwater by the Red River Authority requires commissioners court approval, that approval is likely required where the purchase entitles the Authority to drill for and produce groundwater, and that whether a particular commodity-purchase contract conveys a "groundwater right" is a contract-specific question the opinion does not resolve.

The Red River Authority (as the opinion described it): The opinion described "groundwater rights" under Senate Bill 281 as including the right to drill for and produce groundwater below the surface, distinct from buying water already pumped from the ground, so the Authority's purchases of pumped water from Vernon would not automatically require approval unless the purchase carried a drilling-and-producing right.

Wilbarger County and its commissioners court (as the opinion described it): The opinion described the county's approval power under the bill as reaching purchases of "groundwater rights," not every purchase of groundwater, which was narrower than the county's reading that any development, use, or purchase of underground water needed approval.

Common questions

What did Senate Bill 281 require the Red River Authority to get county approval for?
The AG explained that Senate Bill 281 lets the Authority purchase "groundwater rights" in a county outside any groundwater conservation district only if the county commissioners court approves.

Is buying already-pumped water the same as buying groundwater rights?
Not automatically. The AG explained that Texas law distinguishes groundwater as a commodity from groundwater as a property right, and that the bill made only the purchase of "rights," not of "water," subject to commissioners court approval.

When does the Authority need commissioners court approval, then?
The AG concluded a court would likely require approval where the purchase of groundwater entitles the Authority to drill for and produce the water below the surface in a county without a conservation district.

What are "groundwater rights"?
The AG explained that, generally, a landowner owns the groundwater below the surface as real property, and that ownership includes the right to drill for and produce it. The term as used in the bill includes that drilling-and-producing right.

Did the AG decide whether the Vernon water contract needs approval?
No. The AG said whether a contract that does not give a drilling-and-producing right still conveys a "groundwater right" depends on the particular contract, and that construing contracts and resolving fact questions are not the work of an attorney general opinion.

Background and statutory framework

Senate Bill 281 of the Eighty-third Legislature authorizes the Red River Authority to purchase groundwater rights in a county in its territory only if, where the county is not in a groundwater conservation district, the commissioners court approves the purchase (Act of May 26, 2013, 83d Leg., R.S., ch. 1156, §§ 3, 4, 5, 2013 Tex. Gen. Laws 2879 (Senate Bill 281)). The bill does not define "groundwater rights." Texas law recognizes that a landowner owns the groundwater below the surface as real property and may drill for and produce it (Tex. Water Code Ann. § 36.002(a), (b)(1) (West Supp. 2013); Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 832 (Tex. 2012); City of Del Rio v. Clayton Sam Colt Hamilton Trust, 269 S.W.3d 613, 617 (Tex. App.-San Antonio 2008, pet. denied)), so the term includes that right to drill and produce.

The AG explained that the bill's plain language distinguishes groundwater as a commodity from groundwater as a property right. When the bill amended section 25 of the Authority's enabling legislation, it left intact the phrase "underground water or underground water rights," and numerous Texas statutes likewise distinguish "water" from "water rights" (Tex. Water Code Ann. § 5.013 (West Supp. 2013); § 49.2261(1) (West 2008); Tex. Spec. Dist. Code Ann. §§ 8813.114(c)(1), 8815.112(c)(1), 8878.113(c)(1) (West 2013)). Because the bill made only the purchase of "groundwater rights," not "groundwater," subject to approval (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)), the AG concluded not every purchase of groundwater triggers commissioners court approval, but that approval is likely required where the purchase entitles the Authority to drill for and produce groundwater, leaving contract-specific questions to be resolved by reference to the particular contract. The AG also noted that, because the bill took effect September 1, 2013 and statutes are presumed prospective, a purchase contract entered before that date would not be affected (Tex. Gov't Code Ann. § 311.022 (West 2013)).

Citations

Statutory provisions:

• Act of May 26, 2013, 83d Leg., R.S., ch. 1156, §§ 3, 4, 5, 2013 Tex. Gen. Laws 2879 (Senate Bill 281, Red River Authority groundwater purchases)
• Tex. Water Code Ann. § 36.002(a), (b)(1) (West Supp. 2013) (landowner ownership of groundwater; right to drill and produce)
• Tex. Water Code Ann. § 5.013 (West Supp. 2013) (TCEQ jurisdiction over "water and water rights")
• Tex. Water Code Ann. § 49.2261(1) (West 2008) (water districts may purchase "water or water rights")
• Tex. Spec. Dist. Code Ann. §§ 8813.114(c)(1), 8815.112(c)(1), 8878.113(c)(1) (West 2013) ("purchase, sale or lease of water or water rights")
• Tex. Gov't Code Ann. § 311.022 (West 2013) (statutes presumed prospective)

Cases:

• Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 832 (Tex. 2012)
• City of Del Rio v. Clayton Sam Colt Hamilton Trust, 269 S.W.3d 613, 617 (Tex. App.-San Antonio 2008, pet. denied)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0876 (2011)
• Tex. Att'y Gen. Op. No. GA-0690 (2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1049
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1049.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 7, 2014

The Honorable Craig Estes Opinion No. GA-1049
Chair, Committee on Agriculture,
Rural Affairs & Homeland Security Re: Whether the Red River Authority must
Texas Senate obtain county approval for any purchase of
Post Office Box 12068 groundwater in a county without a
Austin, Texas 78711 groundwater conservation district
(RQ-1155-GA)

Dear Senator Estes:

You ask whether the Red River Authority (the "RRA") must obtain county approval for the purchase of groundwater in a county without a groundwater conservation district.[1] You explain that Senate Bill 281 (the "Bill"), enacted during the Eighty-third Legislative Session, "allows the RRA to purchase groundwater rights" with commissioners court approval. Request Letter at 2; see also Act of May 26, 2013, 83d Leg., R.S., ch. 1156, 2013 Tex. Gen. Laws 2879, 2879-80. The Bill provides that the RRA "may purchase groundwater rights in a county in the Authority's territory only if ... in the case where a county is not in the jurisdiction of a groundwater conservation district, the commissioners court of the county approves the purchase of groundwater rights[.]" Act of May 26, 2013, 83d Leg., R.S., ch. 1156, § 3, 2013 Tex. Gen. Laws 2879, 2879. You explain that the RRA "purchase[s] potable groundwater from the city of Vernon" to supply domestic water to various water systems in Wilbarger County (the "County"). Request Letter at 2. A question has arisen as to what constitutes the "purchase of groundwater rights" so as to require the approval of the commissioners court. The County argues that, under the Bill, "any existing development, use or purchase of underground water in Wilbarger County must be approved by the Commissioners Court." Id. The RRA asserts the contrary position that the Bill "applies to acquisition of groundwater rights," not all purchases of groundwater. Id. We understand your question to be whether the phrase "purchase of groundwater rights" as used in the Bill encompasses the purchase of groundwater that has already been removed from the ground.[2]

The Bill does not define the term "groundwater rights." Generally, "[t]he legislature recognizes that a landowner owns the groundwater below the surface of the landowner's land as real property." TEX. WATER CODE ANN. § 36.002(a) (West Supp. 2013); see also Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 832 (Tex. 2012) (concluding that ownership of groundwater also encompasses groundwater in place); City of Del Rio v. Clayton Sam Colt Hamilton Trust, 269 S.W.3d 613, 617 (Tex. App.-San Antonio 2008, pet. denied) (noting that groundwater may be bartered and sold just as any other kind of property). Such "groundwater ownership and rights ... entitle the landowner, including a landowner's lessees, heirs, or assigns, to drill for and produce the groundwater below the surface of real property" subject to certain regulations and restrictions. TEX. WATER CODE ANN. § 36.002(b)(1) (West Supp. 2013). Thus, the term "groundwater rights" as used in the Bill includes the right to drill and produce groundwater below the surface of the land.[3]

We are urged to treat the purchase of groundwater that has already been removed from the ground as being synonymous with the purchase of "groundwater rights" on the theory that the acquisition of groundwater encompasses certain associated rights that enable the use of the water. The plain language of the Bill, however, seems to distinguish between groundwater as a commodity and groundwater as a property right. In addition to authorizing the RRA's purchase of groundwater rights, the Bill amended section 25 of the RRA's enabling legislation as follows:

Sec. 25. Nothing in this Act shall be construed as authorizing the Authority to acquire or [,] regulate [or control in any way] underground water or underground water rights by condemnation or [purchase or otherwise or to develop,] regulate [or control] the use of underground water resources in any manner [. This act is intended to govern and shall be construed to govern and apply to surface water only].

Act of May 26, 2013, 83d Leg., R.S., ch. 1156, § 4, 2013 Tex. Gen. Laws 2879, 2879-80 (emphasis added). The Legislature left intact the phrase "underground water or underground water rights," suggesting that the two are different. Indeed, numerous provisions in state law distinguish between "water" and "water rights." See, e.g., TEX. WATER CODE ANN. §§ 5.013 (West Supp. 2013) (establishing the jurisdiction of the Texas Commission on Environmental Quality over "water and water rights"); 49.2261(1) (West 2008) (generally authorizing all water districts to "purchase ... water or water rights under an agreement"); TEX. SPEC. DIST. CODE ANN. §§ 8813.114(c)(1), 8815.112(c)(1), 8878.113(c)(1) (West 2013) (authorizing several water authorities, through identical language, to "contract for ... the purchase, sale or lease of water or water rights").

In light of this express distinction in the RRA's enabling legislation and similar distinctions found throughout other state statutes, we cannot conclude that the purchase of groundwater that has already been removed from the ground is indistinguishable from the purchase of "groundwater rights" as that phrase is used in the Bill. Nor can we ignore the plain language in the Bill making the purchase only of "groundwater rights," and not "groundwater," subject to commissioners court approval. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). Thus, not every purchase of groundwater by the RRA will automatically constitute a purchase of groundwater rights requiring commissioners court approval. That said, the Legislature has not articulated what more the term "groundwater rights" as used in the Bill may encompass beyond the right to drill for and produce groundwater. See TEX. WATER CODE ANN. § 36.002(a), (b)(1) (West Supp. 2013). Accordingly, a court would likely conclude that the RRA's purchase of groundwater as a commodity in a county without a groundwater conservation district requires commissioners court approval if the purchase entitles the RRA to drill for and produce the groundwater below the surface of the land. Whether a contract for the purchase of groundwater that does not entitle the RRA to drill for and produce groundwater nevertheless conveys a "groundwater right" such that it must be approved by the commissioners court in a county without a groundwater conservation district is a question that can only be answered by reference to the particular contract at issue. Such questions are not the appropriate subject of an attorney general opinion.[4]

SUMMARY

Whether a contract for the purchase of groundwater that does not entitle the Red River Authority to drill for and produce groundwater nevertheless conveys a "groundwater right" such that it must be approved by the commissioners court in a county without a groundwater conservation district is a question that can only be answered by reference to the particular contract at issue. Such questions are not the appropriate subject of an attorney general opinion.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Craig Estes, Chair, Agric., Rural Affairs & Homeland Sec. Comm., to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Oct. 10, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] The Bill became effective on September 1, 2013. Act of May 26, 2013, 83d Leg., R.S., ch. 1156, § 5, 2013 Tex. Gen. Laws 2879, 2880. "A statute is presumed to be prospective in its operation unless expressly made retroactive." TEX. GOV'T CODE ANN. § 311.022 (West 2013). Nothing in the language of the Bill indicates an intent to apply its provisions retroactively. Thus, a contract for the purchase of groundwater entered into before September 1, 2013, would not be affected by the Bill.

[3] Our discussion of the term "groundwater rights" in this opinion applies only to the Legislature's use of that term in the Bill and should not be construed as expressing any opinion on the scope or extent of a private landowner's property rights in groundwater under Texas law. See Edwards Aquifer Auth., 369 S.W.3d at 832 (discussing private ownership of groundwater as a property right).

[4] See Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1 (noting that questions of fact are not resolved in the opinion process); see also Tex. Att'y Gen. Op. No. GA-0690 (2009) at 3-4 (stating that this office does not construe contracts).