The Texas Landowner’s Guide to Living Next to a Data Center

What every Texas landowner should know when industrial development comes to the fence line.

Trey Wilson Real Estate and Water Attorney. Representing Texas Landowners. Not Developers.

Most of what has been written about data centers in Texas is written for the people building them. This guide is written for the person on the other side of the fence, who did not sell, was never asked, and now has a two hundred acre construction site where a hay meadow used to be.

If you are the one holding an offer, that is a different problem and it is covered in Volume 1, on selling land to a data center. This one is about what happens when the decision was somebody else’s.

My neighbor sold his place to a data center. What happens now?

Not much, for a while, and then everything at once. That gap is the most useful thing you have and most landowners spend it waiting.

These projects move in a predictable order. First an option agreement, which is quiet and public only if you know where to look. Then survey crews, soil borings, and traffic counts. Then applications for water and permits. Then dirt work, which is the point at which the place stops looking like the place. Then eighteen months to three years of construction, and then an operation that never turns off.

Between the option and the dirt work there is usually a year or more. During that window your fences are still standing where they always were, your stock tank still holds what it always held, your well is still producing what it always produced, and nobody can argue with you about any of it. After the dirt work, every one of those becomes a question of proof.

The single most valuable thing in this guide is in Part VIII, and it costs almost nothing to do.

Somebody left papers at my gate. Should I sign them?

No. Not until you know what each one does, because they are not the same document and they do not cost you the same thing.

What tends to show up, in rough order:

• A right of entry or permission to survey. Looks harmless. It lets people and equipment onto your property, and how it is written determines what they may do once they are there, who is responsible if something gets torn up, and whether it expires.
• A temporary construction easement. Use of a strip of your land for the duration of the work. The two questions are what “temporary” means in the document and what condition the ground gets left in.
• A permanent easement. This one runs with the land. It binds you, and it binds whoever buys the place from you or inherits it.
• A release, sometimes printed on the back of a check. A contractor’s man offers a number for a cut fence or a rutted road. Endorsing the check can end the claim, including the parts of it you have not discovered yet.

The general rule is that the first version of any of these is written to favor the party who wrote it. That is not sharp practice, it is just how first drafts work. The mistake is treating a first draft as a take it or leave it proposition when the terms and the price are both negotiable.

One exception worth knowing. If the entity contacting you is an electric utility or a pipeline company asserting eminent domain authority for a transmission line or a pipeline, the rules that govern that process are different and specialized. Ask directly whether the entity claims condemnation authority. If the answer is yes, hire a lawyer who handles eminent domain. That is a different practice from this one and you want the right one.

A company wants an easement across my land to reach the data center. What should I be asking?

Everything has to cross somebody’s land to get there. Water lines, fiber, gas. If the shortest route runs through your place, you are not an obstacle, you are a party to a negotiation, and the terms matter as much as the money.

The questions worth asking before you respond to anything:

• What is the actual width, and what is the actual route? Not “approximately.” Surveyed and described.
• What may the holder do inside the easement? Dig, clear, mow, spray, build roads, park equipment, store material?
• Is it exclusive? An exclusive easement can shut you out of ground you still own and still pay taxes on.
• Is it assignable, and to whom?
• Does it permit additional lines later, or is it limited to what is being built now? Expansion language is where a single line quietly becomes a corridor.
• Who maintains it, and who repairs your fences, gates, cattle guards, and roads when work is done?
• What happens to your access across it?
• What condition must the ground be restored to, and who decides when that has happened?

There is a second situation that catches people. Sometimes nobody asks for anything new, because an old easement already crosses your place. A utility easement granted in 1974 for one line, used lightly for fifty years, and now proposed to carry something far heavier.

Texas law does not let an easement holder do whatever it wants inside the strip. The holder’s rights are limited by the purpose the easement was granted for, and a use that materially increases the burden on your property can exceed the grant. Whether a proposed use crosses that line depends on the language of the original instrument and the history of how it was used. Both are worth reading before you assume the answer is no.

Construction traffic is tearing up my road and my fences. Who is responsible?

Usually the hard part is not proving the damage. It is figuring out who to send the bill to.

A project this size runs through a developer, a general contractor, a stack of subcontractors, utility companies, pipeline operators, and haulers who work for one of the above. The outfit that cut your fence is frequently not the name on the sign at the gate. Establishing who did what, and who is answerable for it, takes documentation that is a great deal easier to gather while the trucks are still running than a year later.

What actually gets damaged: cut and downed fence, ruined gates and cattle guards, private caliche roads rutted past use, lost topsoil, damaged stock tanks, dust heavy enough to affect livestock and hay, and access to your own place blocked or rerouted for months at a time.

County roads are their own question. Heavy construction traffic on a road built for pickups and hay trailers does real damage, and the county has an interest in that damage. Road use agreements between counties and developers are common, they are public, and what is in them affects you. Ask the county what agreement exists before you assume nobody thought about it.

On the private side, keep two things in mind. Write down who you talked to and when. And be careful about accepting a number at the tailgate, because the settlement a contractor’s man offers on the spot is rarely the measure of what you lost.

Will a data center affect my water well?

Maybe, and the first thing to find out is where the project intends to get its water, because the answer changes the entire analysis.

Some projects buy water from a city or a utility. Where that is the arrangement, the pressure on your well is indirect, working through the utility’s own sources and its own permits. Other projects drill their own wells, or buy groundwater rights from a nearby landowner and pipe the water to the site. That is the arrangement that puts a large new industrial straw into the same formation your well draws from. Find out which one you are dealing with before you do anything else.

In Texas, the groundwater beneath your land belongs to you. The Texas Supreme Court has held that a landowner owns the groundwater in place as real property. But ownership is not the same as an unregulated right to pump, and in most of the state a local district regulates production through permits, spacing rules, and production limits.

Why South Central Texas is harder than almost anywhere else in the state

If you take one thing from this guide, take this. Groundwater here is regulated by two different kinds of authority, operating under two different statutes, and the same tract of land can fall under both depending on which formation a well draws from.

The Edwards Aquifer Authority regulates the San Antonio segment of the Balcones Fault Zone Edwards Aquifer. It was created by its own enabling act, adopted in 1993 and effective in 1996, and it covers roughly 8,000 square miles across all or part of eight counties, including all of Bexar and Medina and parts of Guadalupe, Comal, and Atascosa.

The Edwards Aquifer Authority is not a groundwater conservation district under Chapter 36 of the Texas Water Code. It runs on its own enabling act, with its own permitting regime, its own critical period management, and its own procedures. That is not a technicality. It changes what rights you have and what process you get.

Chapter 36 districts govern other formations under the same ground:

So a place in Comal or Bexar County can have Edwards Aquifer Authority jurisdiction over an Edwards well and Chapter 36 district jurisdiction over a Trinity well, on the same tract of land. Two regulators. Two rulebooks. Two sets of deadlines.

When a large new user files to pump, what you are able to do about it depends entirely on which regime applies to you. The deadlines are procedural, which is a polite way of saying that a landowner who works out which authority governs his well after the comment period has closed has worked it out too late.

How much room is there in the aquifer?

Less than the surface suggests, and it changes constantly. The Edwards Aquifer Authority operates under a critical period management plan that ties mandatory pumping cutbacks to measured aquifer levels and spring flows. When those readings fall, authorized withdrawals are reduced across the board, and in a severe drought the reduction can approach half of what a permit allows. When rain returns, the restrictions ease. Then they tighten again.

That cycle is the point. A permit to pump is not a guarantee of available water. In a dry year everyone holding an Edwards permit takes a cut, including industrial users and including the utilities that serve towns. New industrial demand does not arrive into an empty room, and the room gets smaller in exactly the years when your own well matters most.

What if my well starts dropping?

Get it measured, and get it measured against something. A well that is producing less than it did is a fact. A well that is producing less than it did because of a specific new user is a conclusion, and conclusions require a baseline, a record of what changed and when, and usually someone qualified to explain the connection.

Water levels move with drought, with season, and with pumping by everyone in the formation. That is exactly why the measurement you take before construction is worth more than any measurement you take afterward.

Since they graded next door, water runs across my place differently. Is that legal?

Texas law may provide a remedy when nearby construction improperly alters drainage and damages neighboring land. Section 11.086 of the Texas Water Code prohibits diverting or impounding the natural flow of surface water in a manner that damages another person’s property by the overflow of the water diverted or impounded.

Data center sites involve enormous grading. Hundreds of acres get cut, filled, compacted, and paved, and detention ponds and culverts are engineered to move water somewhere. Sometimes the engineering is sound and the water still ends up on you. Sometimes it is defective.

What it looks like on the ground: soil cutting where it never cut before, a stock tank silting in, a low crossing that now washes out, a fence line eroding, fields that stay wet a week after the rain has stopped, and a county road that has become a creek.

Whether there is a claim depends on what was built, how water moved before, how it moves now, and what it damaged. The evidence question matters as much as the legal one, and it gets harder every month. Photographs taken this spring are worth more than a description given next year, and aerial imagery of the way your place drained before the dirt work is worth more than either.

Deadlines apply to these claims, and they are shorter than most people expect. Whether the injury is treated as permanent or temporary also affects timing, and that determination is not always obvious from the outside. Waiting to see whether it happens again is understandable and it is often the wrong call.

The noise and the lights never stop. Do I have a claim?

Possibly, and the honest answer is that Texas sets a high bar for nuisance claims and not every annoyance clears it.

Under Texas nuisance law, a condition that substantially interferes with the use and enjoyment of your land, causing unreasonable discomfort or annoyance to a person of ordinary sensibilities, may support a claim. The words doing the work are substantially and unreasonable. Irritation is not enough. Preference is not enough.

What these operations actually produce: cooling equipment running around the clock, generator testing on a schedule nobody consults you about, security lighting bright enough to change what the night looks like from your porch, dust and vibration during construction, and traffic volumes county roads were never designed for.

Living near development does not automatically strip a landowner of the right to use and enjoy his own land. Where the line sits depends on the facts, the intensity, the duration, and the character of the area. It is a fact question, which means it turns on evidence rather than on how strongly anyone feels about it. Sound readings taken over time are evidence. A log kept contemporaneously is evidence. A recollection offered two years later is a great deal weaker than either.

It also means the case is stronger when someone can say (and document through pictures or video) what the place was like before.

When should I actually call a lawyer?

Not for every inconvenience. Growth and change is going to be uncomfortable and the law does not fix uncomfortable.

Call when one of these happens:

• Anyone asks you to sign anything, including a survey permission or a check with a release on it
• An easement is proposed across your land, or an existing easement is about to be used more heavily
• Your well level, production, or water quality changes
• Water starts moving across your property differently than it did
• Your access is blocked, rerouted, or conditioned
• Your fences, gates, roads, or improvements are damaged
• An entity tells you it has the power to condemn
• You receive notice of a hearing on a water permit and you do not know which authority is holding it

The common thread is that all of these have deadlines attached, and several of them run from a date you may not learn about on your own.

Good neighbors make better projects

The best projects are the ones that respect the people who were there first.

The law cannot eliminate every inconvenience that comes with growth, but it gives Texas landowners meaningful rights. Those rights are strongest when they are exercised early, before easements are signed, roads are relocated, wells are affected, or construction begins.

This guide is general information about Texas law and is not legal advice. Reading it does not create an attorney-client relationship. Every property and every set of facts is different, and deadlines that apply to your situation may already be running.