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7

e

Texas Water Rights

New Developments in Water Law

by Robin A. Melvin

Editor’s Note:

T

his is Part II of a two-part piece

on water rights in Texas. Part I provided an

overview of the basics of surface water and

groundwater rights in Texas. This article will

address a handful of statewide hot topics in

Texas water rights in 2014.

Current Regulation of Surface

Water Use

Groundwater Ownership and Takings

In 2012, in

Edwards Aquifer Authority v. Bragg

, the Texas

Supreme Court announced that Texas landowners own

the groundwater “in place” beneath their property, and

that landowners may have a valid claim for compensation

from the government if regulations go too far in limiting

groundwater production and take their private property.

A 2013 San Antonio court of appeals case,

Edwards

Aquifer Authority v. Bragg

, applies the regulatory takings

analysis in

Day

and illustrates that it may take a number

of landowner lawsuits asserting takings claims against

groundwater districts – each based on unique facts and

circumstances – before enough case law is developed

to provide clearer guidance on how much groundwater

regulation is too much. A June 2014 Amarillo court

of appeals case attempts to apply Day’s groundwater

ownership analysis, demonstrating at least one ownership

issues not settled by

Day

.

Edwards Aquifer Authority v. Day

– ownership

and takings.

On February 24, 2012, the Texas Supreme Court issued

a long-awaited opinion on the ownership of groundwater.

1

Background.

The

Day

case arose from a dispute

between the Edwards Aquifer Authority and two farmers

who owned land in the district. The Edwards Aquifer

Authority Act allowed persons who had used groundwater

before the Act became effective to apply for an initial

regular permit. An applicant for an initial regular permit

was required to prove, by clear and convincing evidence:

(1) beneficial use of groundwater from the Edwards