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17

State Water Plan Implementation Funds – SWIFT/SWIRFT

[Editor’s Note: This section has been omitted. Please contact

courtneyg@yourhonor.com

if you would like full

article]

Conclusion

The new developments discussed in this article are mainly beginnings, not endings. Day, Bragg and Coyote

Lake Ranch are likely to lead to more litigation to provide guidance on the parameters of groundwater rights

ownership and the circumstances in which regulatory limits on groundwater production amount to a talking.

Groundwater districts are now applying the final approved DFCs and MAGs in permitting decisions, some of

these decisions are already on appeal, and there is likely to be new case law on how these considerations

mesh with the law on regulatory takings. The TCEQ currently has no outstanding curtailment orders, but,

if the drought continues, more curtailment orders are likely to be issued, and the Farm Bureau case is no

appeal. Finally, the proposed TWDB rules on prioritization of the use of the funds set aside to implement

the State Water Plan may lead to litigation, but the projects for which loans are approved may lead to more

litigation involving permitting, environmental issues, and condemnation issues, to name a few. Everyone

should expect many other developments in water law in the next five years.

t

(Endnotes)

1 Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 825-26 (Tex. 2012).

2 Edwards Aquifer Auth. v. Day, 274 S.W.3d 742, 756 (Tex. App.—San Antonio 2008).

3 Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 561 (1948).

4 Edwards Aquifer Auth. v. Day, 274 S.W.3d at 832.

5 Id. at 838.

6 Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).

7 Edwards Aquifer Auth. v. Day, 369 S.W.3d at 839.

8 Id.

9 Id.

10 Id. at 840.

11 Id.

12 Id. at 840.

13 Id. at 843.

14 Edwards Aquifer Auth. v. Bragg, No. 04-11-00018-CV, 2013 WL 4535935 (Tex. App.—San Antonio, Aug. 28, 2013, no pet. hist.).

15 Edwards Aquifer Auth. v. Bragg, 2013 WL 4535935 at 17 (citation and footnote omitted).

16 Id. at *19.

17 Id. at *20.

18 Id. at 21.

19 Id. at 13.

20 Id. at 27.

21 Id. at 28.

22 City of Lubbock v. Coyote Lake Ranch, LLC, No. 07-14-00006-CV, 2014 WL 2810419 (Tex. App. – Amarillo, June 17, 2014, no pet. h.).

23 2014 WL 2810419, *6.

24 2014 WL 2810419, *7.

25 Id.

26 See, e.g., City of Del Rio v. Clayton Sam Colt Hamilton Trust, 269 S.W.3d 613 (Tex. App.—San Antonio 2008, pet. denied) (regarding

severance of groundwater rights in the Edwards-Trinity Plateau Aquifer in Val Verde County).

27 Tex. Water Code § 11.053(a).

28 Id. § 11.053(b).

29 Id. § 11.027(c).

30 See 30 Tex. Admin. Code ch. 36.

31 Id. § 36.5(a).

32 Id. at § 36.5(c).

33 My thanks to Joshua Katz of Bickerstaff Heath Delgado Acosta LLP for providing me with information on this case.