Edwards Aquifer Authority v. Bragg
421 S.W.3d 118, 180 Oil & Gas Rep. 429, 2013 WL 5989430 (2013)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A government regulation that severely restricts a landowner's pre-existing right to use groundwater to the point of frustrating their reasonable, investment-backed expectations for the land's primary commercial purpose constitutes a compensable regulatory taking.
Facts:
- In 1979, Glenn and JoLynn Bragg purchased the 60-acre Home Place property with the intention of developing a commercial pecan orchard.
- In 1980, the Braggs drilled an Edwards Aquifer well and installed an irrigation system on the Home Place property.
- In 1983, the Braggs purchased the 42-acre D'Hanis Orchard, which was an existing commercial pecan orchard irrigated by a non-Edwards Aquifer source.
- In 1993, the Texas Legislature enacted the Edwards Aquifer Act, creating the Edwards Aquifer Authority to manage the aquifer through a permit system based on historical water use between June 1, 1972, and May 31, 1993.
- In 1995, after their initial water source became inadequate, the Braggs completed a new Edwards Aquifer well on the D'Hanis Orchard property.
- The Braggs applied for permits for both orchards, but could not show significant water use during the designated historical period as their orchards were either undeveloped or irrigated from another source at that time.
- The Authority granted the Braggs a limited permit for their Home Place Orchard for 120.2 acre-feet of water, far less than they claimed was necessary.
- The Authority denied the Braggs' permit application for the D'Hanis Orchard entirely because they had no historical use of Edwards Aquifer water on that property during the statutory period.
Procedural Posture:
- Glenn and JoLynn Bragg sued the Edwards Aquifer Authority and its General Manager in state trial court for an alleged taking of property and violation of federal civil rights.
- The Authority removed the case to federal court.
- The federal court dismissed the Braggs' civil rights claims and remanded the takings claims back to the state trial court.
- In state court, the trial court granted the Braggs' motion for partial summary judgment, finding that a regulatory taking had occurred.
- Following a bench trial on damages, the trial court entered a final judgment awarding the Braggs $134,918.40 for the D'Hanis Orchard and $597,575.00 for the Home Place Orchard.
- The Authority appealed the judgment to the Texas Court of Appeals, and the Braggs filed a cross-appeal challenging the compensation calculation.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Edwards Aquifer Authority's implementation of the Edwards Aquifer Act, which resulted in the denial of one water permit and the limitation of another, constitute a compensable regulatory taking of a landowner's groundwater rights?
Opinions:
Majority - Justice Sandee Bryan Marion
Yes, the Authority's implementation of the Act resulted in a regulatory taking of the Braggs' property. To determine if a regulatory taking occurred, the court applied the Penn Central factors: (1) the economic impact on the claimant, (2) interference with distinct investment-backed expectations, and (3) the character of the governmental action. The court found the economic impact was severe, as the regulation forced the Braggs to purchase or lease the right to use water they previously owned, rendering their orchards commercially non-viable without significant additional expense. The Braggs had reasonable, investment-backed expectations because when they purchased the properties, Texas law (the rule of capture) allowed them unrestricted use of the groundwater, which was essential to their plan of operating pecan orchards. Although the character of the governmental action—conserving a vital public resource—was legitimate, the first two factors weighed heavily in favor of a taking, as the burden of the regulation fell disproportionately on the Braggs. Therefore, the implementation of the Act constituted a compensable taking.
Analysis:
This case solidifies the application of the Penn Central test to groundwater rights in Texas, affirming that water in place is a vested property right subject to takings claims. It establishes that while the state has a strong police power interest in regulating water, it cannot impose the costs of such regulation entirely on landowners whose reasonable, long-held expectations are frustrated. The decision clarifies that the cause of action for an 'as-applied' takings challenge accrues not upon the enactment of the regulation, but upon the final administrative decision implementing it. This precedent makes it more difficult for the government to regulate away historical water use rights without providing just compensation, potentially increasing the financial burden of future water conservation efforts.
