Come And Take It: Court Ruling Dares Regulators to Limit Pumping

by Forrest Wilder Published on Tuesday, September 3, 2013, at 2:15 CST

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A major decision came down in the arcane, but important world of Texas water law last week—opening the door to more lawsuits against local groundwater boards for regulating water use across the state.
In Edwards Aquifer Authority vs. Bragg Pecan Farm, the Texas Fourth Court of Appeals ruled on Wednesday that the Edwards Aquifer Authority owes landowners money for “taking” their groundwater by limiting pumping.
Groundwater regulators and environmental groups have long worried that such “takings” claims could imperil the state’s complicated and patchwork system of managing aquifers, many of which are increasingly stressed by drought and booming demand. Bragg is the first such “takings” case in Texas—and thus is being closely scrutinized by water interests across the state.
“What makes this case so important and potentially scary, certainly from the standpoint of the survival of the Edwards Aquifer Authority and therefore the survival of all the people who depend on that water, is that this is the first benchmark,” said Amy Hardberger, a professor at St. Mary’s University School of Law in San Antonio. Another environmental law professor wrote that it was a “deeply flawed and harmful decision.”
However, Russell Johnson, an Austin attorney who represents landowners, says the case simply establishes a balance. “It clarifies that the government’s good reasons for regulation don’t trump the property rights of landowners who have made those investment-backed expectations,” he said.
Although he shrugs off the notion that Bragg could make it impossible to sensibly regulate groundwater, he argues that groundwater districts will have to evolve.
“I believe most of the groundwater conservation districts in Texas want to preserve the status quo and that’s going to be hard to do and simultaneously respect groundwater rights. They’re just going to have to adjust to the fact that they can’t say no, they can’t just say this resource is already stressed .”
JoLynn and Glenn Bragg sued the Edwards Aquifer Authority after it denied them the full amount of water they claimed to need to irrigate two pecan orchards in Medina County, west of San Antonio. The couple argued that the allocated amount was insufficient for mature pecan trees, diminishing their crop and economically wrecking their livelihood. Read More......