New Strategies for Groundwater Litigation in Texas

Abstract

In 2012, the Texas Supreme Court’s ruling in the Edwards Aquifer Authority v. Day established a vested right in groundwater in the surface owner. Since then, litigation has centered on the 5th Amendment rights of property owners who were denied a permit by a Groundwater Conservation District (GCD). Concerns about compensation obligations have made GCDs hesitate to promulgate or enforce policies that could result in costly litigation. This development serves to prioritize the property interests of those who wish to pump large quantities over property owners who value leaving water in place and threatens the management of the aquifers. Permitting based solely on a property right undermines the larger legal obligations of groundwater districts created by Chapter 36 of the Texas Water Code. Requirements include protecting all property interests within the district, the aquifer itself, and associated natural resources. When viewed in a larger context of Districts’ authority and obligations, additional litigation avenues are possible that will balance the rights of all owners and better protect water resources. This paper explores the laws governing Districts including a detailed evaluation of their authority and a review of takings jurisprudence through a conservation lens.