Many Texas cities have enacted ordinances that require landowners to connect to public water supply systems. These ordinances regulate land use, and generally prohibit landowners within the City from drilling water wells when municipal or public water supply is located nearby and is reasonably available to serve the property.
Although landowners may desire to drill their own water wells or to utilize existing historic wells to serve their property, the ability to do so within City limits or other platted areas can be limited.
Just because you own a water well does not mean you have the right to use it if you are located within the area of a City or other governmental unit that requires connection to a public water supply. Such is the case in Austin, Texas where the City has adopted the following Ordinance (exceptions not included here):
601.1.1 Water system connection required. If any part of a lot or tract that contains a house or building is located within 100 feet in horizontal distance measured based on the closest practicable access route) of a state licensed public potable water system, the water system of the house or building must be separately and independently connected to the public water system.
See City of Austin Code of Ordinances Section 25-12-153 at amendment 601.1.1,
Municipal ordinances requiring landowners to connect to public water systems — even where the owner has a well — are not uncommon. This means that landowners who desire to connect to their own wells are frequently unable to legally do so.
A recent opinion from the Third Court of Appeals illustrates that one tool available to cities seeking to prevent private water well use is refusal to issue a certificate of occupancy. The opinion also establishes that Cities have broad immunity from individualized legal claims arising from water connection requirements.
This is exactly what the City of Austin did in the case of property owners who a purchased a vacant lot with the intent of building a house. Even though a City-owned water tap was located at the property, the property owners contracted to have a water well drilled on the Property. The well was initially installed as an irrigation well, but later the owners requested to have their property served by well water rather than by Austin Water.
The City denied the owners’ request for a building permit that included an intent to avoid the City’s water connection requirement through use of the private water well. It also denied the landowners’ request for a Certificate of Occupancy once the residence was built. Based upon those denials, the landowners sued the City of Austin and certain City officials in Travis County District Court.
The Third Court characterizes the landowners’ claims as follows:
The property owners alleged that ” any actions by Austin Water to require him to connect to the public potable water system violated his ;personal property and basic contractual rights under Texas State Law.’ ”
Rooney asserted causes of action for: (1) violating his right to liberty and due course of the law provided by Article 1, section 19 of the Texas Constitution; (2) violating rights secured by the privileges or immunities guarantee in Article 1, section 19 of the Texas Constitution; and (3) violating 42 U.S.C. § 1983 by, under color of an ordinance, depriving him of rights, privileges, and immunities secured by the United States Constitution. Each of these causes of action is based on Rooney’s assertion that the City Officials acted ultra vires when they required him to comply with the Connection Requirement, an ordinance that, in his view, did not apply to the residence constructed on the Property. The relief Rooney requested was an injunction directing the City Officials to remove from the building permit the requirement that he comply with the Connection Requirement before he could obtain final inspections and a certificate of occupancy for the residence.
Following a bench trial, the Court dismissed the landowners’ claims on sovereign immunity grounds. On appeal, the Third Court of Appeals determined that governmental immunity required the trial court to dismiss the landowners’ claims and affirmed the trial court’s dismissal.
The following discussion of governmental immunity was instructive for the decision:
When it applies, governmental immunity protects political subdivisions of the State, including cities, from suit. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). A governmental unit’s immunity implicates a trial court’s subject matter jurisdiction. Engelman Irrigation Dist. v. Shields Brothers, Inc., 514 S.W.3d 746, 751 (Tex. 2017). Governmental immunity generally applies to municipalities when they are performing governmental as opposed to proprietary functions. Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 439 (Tex. 2016); City of Austin v. Utility Assocs., Inc., 517 S.W.3d 300, 307-08
(Tex. App.—Austin 2017, pet. denied). Providing water and sewer service is a governmental function. See Tex. Civ. Prac. & Rem. Code § 101.0215(a)(32) (municipality’s provision of water and sewer service constitute governmental functions).
