The Texas Supreme Court has taken steps to extend the “accommodation doctrine,” which was initially developed to resolve disputes between surface and minerals owners, to disputes between surface owners and the owners of subsurface groundwater. The decision in Coyote Lake Ranch LLC v. The City of Lubbock could have significant impacts for groundwater owners that must access their groundwater through a severed surface estate. [Coyote Lake Ranch LLC v. The City of Lubbock, Case No. 14-0572 (Tex. 2016).]

The accommodation doctrine will require groundwater owners to take into account the surface use and possibly redesign a groundwater well field to limit the surface impacts. Overall, groundwater owners may incur greater costs in developing wells because of increased engineering and construction costs. Depending on the surface use and the extent to which that use must be accommodated, it could make developing a groundwater right more costly and less economical.

However, this is no windfall for surface estate owners. While the court’s decision will provide surface owners with a greater level of protection for existing uses, they have the onerous burden of satisfying that: 1) the groundwater owner’s use completely precludes or substantially impairs the existing use; 2) there is no reasonable alternative way to continue the surface use; and 3) there are alternative reasonable methods available to the groundwater owner which will allow production of water and also allow the surface owner to continue the existing use. The Texas Supreme Court’s decision is accessible online at: https://scholar.google.com/scholar_case?case=11073396336812381689&q=Coyote+Lake+Ranch+LLC+v.+The+City+of+Lubbock&hl=en&as_sdt=2006&as_vis=1

(Wesley A. Miliband, Eric R. Skanchy)