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2016-03-03

Jury awards millions to pecan farmers

By Carolyn B. Edwards BCC Staff Writer

A jury in Hondo voted to award a multi-million dollar settlement from Edwards Aquifer Authority to pecan farmers JoLynn and Glenn Bragg as a decade long legal battle came to a close last week.
The Braggs sued the EAA in 1996 after that groundwater district issued a permit for half the volume they had asked for on one property and had denied a permit for pumping from the aquifer on another property.
Attorneys provided dueling testimony for four days in Medina County to determine the value to the Braggs’ property with and without unlimited water from the aquifer to irrigate their pecan orchards.
The EAA argued the difference in value was $75,000 for the two properties; the Braggs claimed a difference in value of $4.4 million.
This case was the first in Texas in which property owners sued a groundwater district for limiting groundwater and won.
Legal experts predict the case will open the door to more lawsuits. The Braggs’ attorneys based their arguments in part on the landmark Texas Supreme Court case, Edwards Aquifer Authority vs Day, which applied oil and gas law to groundwater pumping limits.
That case ruled that a landowner has “an absolute vested property right to groundwater in place, just like oil and gas,” a Texas Observer article by Forrest Wilder concluded. The court ruled that “landowners could make a case that groundwater districts could owe them money when they limited or denied permits to pump.”
While the Day Court held that restricting a landowner’s ability to produce groundwater could amount to a taking, concluded the Texas Alliance of Groundwater Districts, it failed, however, to define a specific regulatory threshold.
The Bragg Court, in contrast, found that EAA’s actions did constitute a taking.
A taking is defined legally as “when the government acquires private property and fails to compensate an owner fairly. A taking can occur even without the actual physical seizure of property, such as when a government regulation has substantially devalued a property.”
As periodic drought and increased demand from growing populations put more stress on aquifers, groundwater districts working to develop a comprehensive statewide water plan may find themselves spending their money on attorneys instead of good science to assure that Texas’ water resources are protected.
As the law stands following the Bragg case, a landowner can drill a well and pump the aquifer dry, with no regard for neighbors and their water needs.
No doubt this issue will be visited by the next Legislative session in Austin.