Groundwater Case Could Have Trickle-Down Effects on Future Regulation

Feb 19, 2016

A jury in Medina County is expected to announce damages soon in a case that pitted landowners against the Edwards Aquifer Authority — a case that could tell us something about how Texas water will be regulated in in the future.

Here's the back story. The Bragg family owns pecan orchards. The Edwards Aquifer Authority regulates groundwater under those orchards. When the authority told the Braggs they could not pull all the water they wanted for their trees, the Braggs sued.  They argued the authority was infringing on their private property rights. The courts agreed.

“When that happens, under the constitution, the person's entitled to just compensation for that right that’s been taken away,” says Tiffany Dowell Lashmet, a Professor of Agricultural Law at Texas A&M AgriLife Extension in Amarillo. Now the jury will decide how much the Edwards Aquifer Authority owes the Braggs. That’s generated a lot of interest from private property owners and other water Authorities and groundwater districts.

“I think those districts are watching to see how much…what’s it going to cost the Edwards Aquifer Authority for denying that permit. I think the landowners are watching to [say] ‘Okay, if I have a permit denied and I have facts that are capable of proving a taking has occurred, what kind of compensation am I looking at?’”

And it's a ruling that should really be of interest to all of us, says Amy Hardberger, a professor at Saint Mary’s School of Law. As Texas grows, she says, it will have to find new ways of regulating water. But where does appropriate regulation start, and how much will it cost?

“None of us really know where that line is, and the Bragg case shows us one data point on that line between permissible regulation and impermissible property infringement,” Hardberger says. “But there’s still a long line that’s a little invisible. So it’s very difficult to know how to go forward in a way that’s resource protective but that’s still legal.”

While the case does supply that "data point," both Hardberger and Dowell Lashmet stress that there are many specifics to the Bragg story that may not apply to other cases where a landowner is refused a permit to draw water.

A decision on how much the Edwards Authority will need to pay the Braggs is expected as early as Friday. The authority may appeal that decision.

Below find the Opinion on the appeal brought to the 4th Circuit Court by the Authority, i.e. the Edwards Aquifer. The Court ruling states that a previous trial court had erred, not in assigning responsibility to the Authority for taking the Bragg's property, but in quantifying the compensation owed the Braggs.