by Jim Malewitz
|photo by: Axel Gerdau|
The Texas Supreme Court made news Friday for what it didn’t do. To the surprise of a bevy of water rights experts, the court turned away a high-profile case seeking clarity on murky groundwater laws.
As the state's lakes and rivers dwindle under drought and the demands of swelling population, competition for groundwater sources continues to intensify. How much water landowners can pump, and who has the authority to limit them, are proving crucial questions.
Most observers had expected the state's highest civil court to weigh in on a recent lower court ruling that seems to tip the balance toward landowners when groundwater districts try to limit their water use.
But the justices declined to review the appeals court’s ruling in Edwards Aquifer Authority v. Glenn and JoLynn Bragg – the first time a Texas appeals court found that groundwater regulation resulted in a violation of property rights under the Texas Constitution.
That case has fueled fiery debate about how Texas can balance groundwater protections and private property rights, and experts thought it ripe for the high court’s ruling.
The decision means Texans are no closer to addressing a conundrum that will only prompt more costly litigation in the coming years.
Texas owns the water in rivers, streams and lakes above ground and governs its allowance.
Then there’s groundwater.
More than a century ago, the Texas Supreme Court established the “rule of capture,” meaning that landowners can pump however much water they want from underneath their property regardless of whether it depletes their neighbor’s supply. Some 50 years later, lawmakers put groundwater regulation in the hands of local groundwater conservation districts, drawn across political boundaries rather than aquifer lines. Nearly 100 of these districts exist today, and all have different rules with little state oversight.
Not until 2012 did the Supreme Court finally rule in Edwards Aquifer Authority v. Day that regulations limiting groundwater- pumping rights could result in “taking” property rights under the Texas Constitution. And in 2013, the 4th Court of Appeals’ decided the Bragg case, finding that such a taking had occurred in Central Texas.
The Edwards Aquifer Authority is one of the largest and most powerful groundwater districts in the state. A federal judge ordered its creation in 1993, finding that unfettered pumping was threatening endangered species.
But Glenn and JoLynn Bragg had invested more than $2 million to grow pecans on 100 acres over the aquifer long before that. When the authority restricted the amount of water they could pump under that land, they sued, saying their property rights were violated.
The appeals court agreed. Justice Sandee Bryan Marion wrote that the restriction “forces the Braggs to purchase or lease what they had prior to the regulation — an unrestricted right to the use of the water beneath their land.” That outweighs even “the importance of protecting terrestrial and aquatic life, domestic and municipal water supplies, the operation of existing industries and the economic development of the state.”
(The court did send the case back to a lower court to recalculate the damages owed to the Braggs.)
Though water experts caution against applying the decision to other intensely fact-specific cases, the opinion – unchallenged for now – worries groundwater districts weighing new regulations to protect their supplies.
“It’s kind of now the law of the land,” said Greg Ellis, a lawyer who represents the Hays-Trinity Groundwater Conservation District and previously managed the Edwards authority, who took issue with several findings in the ruling. “Giving somebody their fair share should never result in a takings, and I’m disappointed that potentially could be seen as doing that.”
Broadly speaking, the court’s lack of action could bolster the position of landowners in future battles. That could include those involved in an emotional tug-of-war over Hays County water that has spilled into the Legislature: Houston-based Electro Purification wants to pump up to 5 million gallons of water a day from Trinity Aquifer wells and sell it to Austin's fast-growing Hill Country suburbs.
Critics fear that volume of pumping could cause nearby residents' wells to dry up. (The company says that won’t happen.), and Rep. Jason Isaac, R-Dripping Springs, and Sen. Donna Campbell, R-New Braunfels, are pushing legislation to place the currently unregulated area Electro Purification wants to tap into the Barton Springs/Edwards Aquifer Groundwater Conservation District to regulate the project.
The company and communities that support the project fear new regulations could jeopardize existing contracts, and some $2 million invested in test wells and other planning, bringing up the possibility that litigation could follow the bill’s passage – depending on how much water the district would dole out.
“The Bragg decision is extremely favorable to the Electro Purification position,” said Russ Johnson, a water lawyer based in Austin.
But to test those hypotheticals, the legislation – Senate Bill 1440 – must first gain approval, and it has yet to wriggle out of the Senate Committee on Agriculture, Water and Rural Affairs.
In a statement Friday, Sen. Charles Perry, the committee’s chairman, said the bill as written “is not collectively agreed upon even within in Hays County because it deviates from standard water and property rights principles,” and that he plans to keep working with Isaac and Campbell to make it ready for a vote “very soon.”
Isaac has bristled at bill’s slow-moving pace and said the proposal remains his biggest priority.
“That’s what we’re trying to prevent – is people getting their water taken out from under them,” he said in an interview. “It needs to be within the managed available groundwater, and it needs to be protected.”
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