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Article Title

Taking Groundwater

Publication Title

Washington University Law Review

Abstract

In February 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on groundwater use regulation.

This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, this Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.

The analysis leads to several key conclusions. Most importantly, it undermines arguments for granting groundwater use rights and heightened protection against regulatory limitations. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find little support in past groundwater/takings case law, and no property theory justifies adopting such an approach. That does not mean that groundwater use rights should not qualify for constitutional protection. Despite some recent arguments to the contrary, such treatment is grounded in precedent and is entirely compatible with sensible groundwater management. This Article therefore concludes that the application of a relatively mainstream version of takings doctrine, which treats groundwater rights as property but allows substantial government regulation of groundwater use, is both the most traditional and the most theoretically justifiable approach.