In the Edwards Aquifer Authority and The State of Texas v. Burrell Day and Joel McDaniel, the Texas Supreme Court ruled against some forms of water regulation and may have opened the spigot to a string of new water-related lawsuits.
The decision concluded, “We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does. We affirm the judgment of the court of appeals and remand the case to the district court for further proceedings.”
The case concerning Day and McDaniel concerns their farm land atop the Edwards Aquifer.
“To continue to use the well, or to drill a replacement as planned, Day needed a permit from
the Edwards Aquifer Authority. The Authority had been created by the Edwards Aquifer Authority
Act in 1993, the year before Day bought the property. The Edwards Aquifer is “the primary source of water for south central Texas and therefore vital to the residents, industry, and ecology of the region, the State’s economy, and the public welfare. The Legislature determined that the Authority was “required for the effective control of the resource to protect terrestrial and aquatic life, domestic and municipal water supplies, the operation of existing
industries, and the economic development of the state.”
“The Act “prohibits withdrawals of water from the aquifer without a permit issued by the
Authority”. The only permanent exception is for wells producing less than 25,000 gallons per day for domestic or livestock use. The Act gives preference to “existing user[s]” — defined as person who “withdr[ew] and beneficially used underground water from the aquifer on or before June 1, 1993” — and their successors and principals. With few exceptions, water may not be withdrawn from the aquifer through wells drilled after June 1, 1993.”
Day made a filing to pursue a well; after an extended period, the authority did not act. “Although the Authority cautioned that it still had not acted on the application, Day proceeded to drill the replacement well at a cost of $95,000. In November 2000, the Authority notified Day that, “[b]ased on the information available,” his application would be denied because “withdrawals [from the well during the historical period] were not placed to a beneficial use”. Day protested the Authority’s decision, and the matter was transferred to the State Office of Administrative Hearings for hearing.”
The result was a split decision on the merits of the case, though it meant some shift of legal ground for the authority: “We begin by considering whether, under the EAAA, the Authority erred in limiting Day’s IRP to 14 acre-feet and conclude that it did not. Next, we turn to whether Day has a constitutionally protected interest in the groundwater beneath his property and conclude that he does. We then consider whether the Authority’s denial of an IRP in the amount Day requested constitutes a taking and conclude that the issue must be remanded to the trial court for further proceedings. We end with Day’s other constitutional arguments, concluding that they are without merit.”
Luana Buckner, chair of the Edwards Aquifer Authority Board of Directors, responded to the decision, “At this time, we are reviewing the Supreme Court’s opinion in detail to further ascertain the implications it may or may not have for the continued effective management and protection of the Edwards Aquifer and the economic interests of those who rely on it as their water source. It is important to note that the Supreme Court’s opinion affirms that procedurally the Edwards Aquifer Authority appropriately carried out its responsibilities to the letter of the law as prescribed by the Edwards Aquifer Authority Act. However, the opinion leaves unresolved the question of whether properly following the EAA Act and granting the plaintiffs’ permit in accordance with the Act has resulted in a compensable taking of property as defined by the Texas Constitution and remands that issue to the trial court for further proceedings. We will await further legal review of the opinion before commenting further.”