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More on EAA v. Bragg

Tuesday, 17 December 2013 18:35 Written by

The issue of what it means to own groundwater has been at the forefront of water issues at the Texas Legislature and the Texas Supreme Court for the past few years.  In 2011, the Texas Legislature passed legislation recognizing that a landowner owns the groundwater below the surface of the landowner's land, subject to regulation by groundwater conservation districts (GCDs).  

The following year, the Texas Supreme Court elaborated further when it issued its long-awaited decision in Edwards Aquifer Authority v. Day. At issue in that case was whether a groundwater regulation scheme could be so restrictive so as to constitute a taking of private property for public use. In its holding, the Court reiterated the 2011 legislation and held that a landowner has absolute title to groundwater in place beneath the landowner’s land, subject to the rule of capture and regulation by a GCD. 

The Day Court further held that restricting a landowner’s ability to produce groundwater could amount to a taking, but failed to delineate a specific regulatory threshold (except to say that not all groundwater regulation would rise to that level).  Because the facts of the case were not adequate to determine whether a taking occurred, the Court remanded the case back to the district court.  Shortly thereafter, the EAA and the Day plaintiffs reached a settlement, thus precluding the courts from determining whether a taking occurred under the Day facts and leaving many unanswered questions for groundwater owners and managers.

In August, the San Antonio Court of Appeals issued a decision in Edwards Aquifer Authority v. Bragg, the first major case since Day to address groundwater ownership (The court of Appeals withdrew its August opinion and issued a new one with minor changes in November 2013).  In addition, because the Bragg court found the EAA’s actions to constitute a taking, the decision also addresses groundwater valuation.  Though it is likely that the case will be appealed to the Texas Supreme Court and is therefore not yet settled law, it presents important issues for those interested in Texas groundwater law, particularly as to how groundwater may be valued in future takings lawsuits.

In Bragg, the plaintiffs applied for groundwater permits for their two pecan orchards. The EAA applied its historical use formula, as mandated by state law, and granted a permit for less water than the Braggs requested for one orchard and denied a permit outright for the other. The Braggs sued the EAA, alleging the EAA’s actions constituted a taking. The trial court agreed, and entered a judgment in favor of the plaintiffs.  On appeal, the following three issues were presented: 

Assignment of Liability

The Court of Appeals first considered the issue of whether the State of Texas, rather than the EAA, is the proper defendant because the EAA merely acted in accordance with state-mandated requirements adopted by the Legislature. The court acknowledged that “there is no dispute the Authority’s actions were dictated by the Act,” but it ultimately failed to decide whether the State, the EAA, or both would be liable.

Takings Analysis

The court ultimately agreed that the EAA’s partial denial and outright denial of the Bragg’s permit applications amounted to a taking. To arrive at this decision, the court applied the Penn Central analysis, an imprecise test first delineated by the U.S. Supreme Court. Under the test, the Bragg Court considered (1) the economic impact of the regulation on the Braggs; (2) the extent to which the regulation interfered with investment-backed expectations; (3) the character of the governmental action; and (4) other relevant factors. The court then balanced the factors to determine whether the action amounted to a taking.

On the economic impact factor, the court held in favor of the Braggs. The court reasoned that prior to the EAA’s regulation the Braggs had an unrestricted right to produce water and that the regulation now forces the Braggs to purchase or lease that water. The court found this to be a significant and negative economic impact.

On the investment-backed expectations factor, the court again held in favor of the Braggs. Though the court found that the Braggs should have anticipated future regulation of their groundwater, the court nonetheless found the Braggs’ contrary expectation reasonable.

On the character of the governmental action factor, the court held in favor of the EAA. The court cited to the State’s unquestionable authority to regulate groundwater production and the importance of protecting plant and animal life, domestic and municipal water supplies, industry, and economic development.

On other relevant factors, the court again held for the Braggs. The court cited to the nature of the Braggs’ business, which is agricultural, which necessitates water. Balancing the factors together, the court held that the regulatory action was a taking requiring just compensation.

Compensation

Finally, the court laid out the formula for calculating compensation, holding that compensation must be based on the value of the orchards immediately before and after the EAA’s permitting decision. The court then sent the case back to the trial court for application of the rule.

Due to the unique facts of the case, the distinction between the EAA and all other Texas GCDs, and pending appeals, Bragg leaves unanswered questions, just as Day did before it.  Regardless of the outcome, GCDs will continue working to balance private property interests with management and long-term conservation of groundwater.  By their own language, SB 332, Day, and Bragg do not change the continued important, authorized role of groundwater management by GCDs, as endorsed by the Legislature and the Texas Supreme Court. The alternative – no management – affords no landowner protection and reinstates the Rule of Capture, where the biggest pump prevails.

 

Welcome, new TAGD Officers and Executive Committee Members!

Tuesday, 01 October 2013 17:52 Written by

October 1st means the start of a new fiscal year for TAGD, and this year we are excited to welcome new officers and committee members for two year terms.  To see who will be serving, please check our Officers and Committees pages.  

TAGD is so incredibly grateful to its FY 11/12 and 12/13 Executive Committee members: Kathy Turner Jones, David Van Dresar, Kirk Holland, Steve Walthour, Cindy Weatherby, Jim Conkwright, Janet Adams, Tim Andruss, Joe B. Cooper, Ron Fieseler, and Gary Westbrook, as well as all TAGD Committee members.  We appreciate all the hard work and dedication more than words can say.  Without these members, TAGD could not operate as it does.  THANK YOU!!!

Special recognition goes to TAGD officers and members who retired/will retire in 2013:

David Alford
Luana Buckner
Jerry Chapman
Jim Conkwright
Kirk Holland
Mike Mahoney
Roy J. Rodgers
Cindy Weatherby
 

San Antonio Court of Appeals Issues Opinion in EAA v. Bragg

Tuesday, 24 September 2013 19:16 Written by

The opinion is available here.

Lone Star GCD Wins Texas Rain Catcher Award

Monday, 04 March 2013 17:44 Written by

CONROE, Texas - The Texas Water Development Board has announced Lone Star Groundwater Conservation District as the recipient of the 2012 Texas Rain Catcher Award in the government category. The award was presented February 28th at the Board's meeting.  

The TWDB recognizes excellence and innovation in capturing water from rainfall that might otherwise be wasted.  Lone Star Water's General Manager, Kathy Turner Jones, believes the award will help promote the group's mission to conserve water in Montgomery County.

Save the Date! Texas Groundwater Summit 2013

Wednesday, 20 February 2013 02:32 Written by

TAGD's second-annual Texas Groundwater Summit will be at the San Marcos Embassy Suites August 27-29, 2013.  Registration available soon!  For more information visit our Texas Groundwater Summit page.

Groundwater Day at the Texas Capitol

Tuesday, 15 January 2013 16:18 Written by

Save the date for Groundwater Day at the Texas Capitol!  We are planning to visit legislators and their staff on February 27th to let them know about TAGD and the good work done by GCDs across the state

GD_Save_the_Date_800x533.  

National Groundwater Awareness Week!

Wednesday, 14 March 2012 17:43 Written by

March 11-17, 2012 is National Groundwater Awareness Week!  Visit the National Ground Water Association's website for more information.  To find out what organizations are participating in National Groundwater Awareness Week in Texas, visit here.  Some of our member districts, like Barton Springs/Edwards Aquifer Conservation District, are promoting this week with special programs.  We'd love to hear what you're doing in Texas to commemorate this important week!  Check out TAGD's facebook page and National Groundwater Awareness Week's facebook page for more information and updates.  

Texas Supreme Court Issues Opinion in EAA v. Day

Friday, 24 February 2012 16:03 Written by


The Texas Supreme Court has issued its opinion in the EAA v. Day and McDaniel case, affirming the opinion of the court of appeals.  The full opinion can be found here.  

The Facts on Proposition 2 (TWDB Financing)

Monday, 17 October 2011 12:56 Written by

prop2Early voting starts next week!  Interested in learning more about Proposition 2, the ballot initiative implementing SJR 4 from the 2011 Legislative Session?  Visit TWDB's Prop 2 Information Page or Texas Infrastructure Now for detailed information. 

To summarize, the proposition, if approved, will allow TWDB to provide additional funding opportunities for local water infrastructure projects in Texas.  It does not create state debt and is self-supporting, meaning the bonds would be issued only to provide funding requested by local communities, and then the entity benefiting from the projects will repay the loans, and thus the bonds. This initiative passed the Legislature with overwhelming bipartisan support.

Welcome, New Officers and Committee Members!

Sunday, 02 October 2011 18:40 Written by

October 1st means the start of a new fiscal year for TAGD, and this year we are excited to welcome new officers and committee members for two year terms.  To see who will be serving, please check our Officers and Committees pages.  

TAGD is so incredibly grateful to its 09/10 and 10/11 Executive Committee Members: Jim Conkwright, Mike Mahoney, Kathy Turner Jones, Kirk Holland, Lonnie Stewart, Janet Adams, Scott Holland, Ron Fieseler, Joe Cooper, and Gary Westbrook, as well as all TAGD Committee Members.  We appreciate all the hard work and dedication more than words can say.  Without these members, TAGD could not operate as it does.  THANK YOU!!!

Current drought could become worst ever, state climatologist says

Friday, 30 September 2011 16:21 Written by

By Farzad Mashhood, AUSTIN AMERICAN-STATESMAN

Texas could be in the midst of a drought the history books have never seen, meaning water planners need to prepare for worse than what they've seen, state climatologist John Nielsen-Gammon said Thursday.

The current drought could last until 2020, because the region's climate is in the middle of a 20- to 40-year dry phase, Nielsen-Gammon said.

TAGD Legislative Update Published in the Texas Water Journal

Thursday, 29 September 2011 16:28 Written by

Texas_Water_JournalTAGD's 2011 Legislative Wrap-Up has been published in the Texas Water Journal.  In addition to TAGD's summary, the journal includes legislative updates from Ken Kramer of the Lone Star Chapter of the Sierra Club, Jason Skaggs of Texas and Southwestern Cattle Raisers Association, Billy Howe of the Texas Farm Bureau, and Dean Robbins of the Texas Water Conservation Association.  The issue also includes a peer-reviewed article about the statistical relations of precipitation and stream runoff for El Niño and La Niña periods by Raymond M. Slade Jr. and T. Edwin Chow.

To read the journal, go here.

Texas High Plains Conservation Initiative Receives Federal Funding

Thursday, 25 August 2011 14:36 Written by

For Immediate Release                                                                                                                      August 24, 2011

 

Contacts: Kirk Welch, North Plains Groundwater Conservation District 806-935-6401, Norman Martin, Texas Tech University 806-742-2808, Quenna Terry, NRCS 806-791-0581

A Texas Panhandle-High Plains conservation project has been awarded a federal grant from the United States Department of Agriculture’s Natural Resources Conservation Service (NRCS). The Texas High Plains Initiative for Strategic and Innovative Irrigation Management and Conservation (the Initiative) will receive a $499,848 Conservation Innovation Grant (CIG) to show farmers how to save irrigation water and extend the economic viability of their operations. The Initiative is designed to demonstrate strategic irrigation and crop system management technologies and practices, resulting in water savings across the region and best practices that are applicable nationwide in regions facing similar resource concerns.

The Initiative is a collaborative effort between the USDA-NRCS and North Plains Groundwater Conservation District, High Plains Underground Water Conservation District, Texas Alliance for Water Conservation (TAWC) and Texas Tech University. Until this joint application for funding, the member organizations of the Initiative were working on two separate irrigation efficiency demonstrations, the TAWC in Hale and Floyd counties in the south plains, and North Plains Groundwater Conservation District in the in the northern panhandle counties.

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