Protecting groundwater rights in Texas

October 09, 2012 | By JENNIFER THOMPSON

PLF recently filed an amicus brief in the Texas Court of Appeals in Edwards Aquifer Authority v. Bragg.  Glenn and Jolynn Bragg own and operate two pecan orchards in Medina County, Texas.  They purchased both parcels of land—one in 1979 and the other in 1983—on account of their location above the expansive Edwards Aquifer.  Because pecan trees require greater amounts of water as they mature, the Braggs knew they would become increasingly dependent on Edwards Aquifer water.  This did not pose a problem as their ownership of land included the right to use as much groundwater as necessary to irrigate their orchards.

Things changed in 1993, however, when the Sierra Club won a federal lawsuit under the Endangered Species Act that required increased protection for four species living in springs fed by the Edwards Aquifer.  As a result, the Texas Legislature created the Edwards Aquifer Authority to regulate and to limit the amount of water that could be pumped from the Aquifer.  The Braggs duly applied for permits to continue irrigating their orchards with Aquifer water but the Authority entirely denied their application for one of their orchards, and substantially denied their application for the other.

The Braggs challenged the Authority’s permit denials as a taking of their water rights and won in the Texas state trial court.  On appeal, the Authority argued that its denial of the Braggs’ use of their groundwater was perfectly legal under its authority to regulate the Aquifer.  PLF’s amicus brief supports the Braggs’ takings claim by arguing that the Braggs’ had a “reasonable, investment-backed expectation” to use their groundwater for irrigating their orchards.  They purchased these particular properties for the explicit purpose of growing pecan trees and had been using them for that purpose for years before the Authority even existed, much less tried to curtail their water use.  Because a property owners’ expectations are critical to a takings analysis, PLF’s brief concludes that the court should affirm the lower court decision and find that government cannot regulate away water rights without compensating property owners.