1. Groundwater Case Law
Stacey Allison-Steinbach
Texas Alliance of Groundwater Districts
Leadership Training
September 16, 2014

2. Groundwater Ownership
Other Noteworthy Cases*
GCD Inventory
Emerging Legislative Issues

3. Houston & TX Central RR v. East
• 1904 TXSC decision; landowner’s well went dry when
railroad drilled well next door
• Court held landowners may capture unlimited amount of
groundwater beneath their property
• Doctrine of nonliability for drainage, NOT a property rule
(“Law of the biggest pump”)
• Provides little certainty and no protection

4. Limits: Rule of Capture
• Trespass
• Malicious or wanton
conduct
• Waste (but see Corpus
Christi v. Pleasanton)
• Subsidence due to negligent
over pumping
(Friendswood)

5. The Evolution Continues
• Pecos County WCID No. 1 v. Williams et al. (1954)
• City of Corpus Christi
v. City of Pleasanton
(1955)
• Friendswood Dev. Co.
v. Smith-Southwest
Ind. (1978)

6. The Evolution Continues (pt. 2)
• Sipriano v. Great Springs Waters of America
(1999)
• City of Del Rio v. Hamilton Trust
(2008)
• Guitar Holding v. Hudspeth
County UWCD No. 1 (2008)

7. Legislature Weighs In (SB 332)
• Landowners own groundwater below the surface as real
property
• Landowner entitled to drill for and produce groundwater, but
not a specific amount
• GCDs may limit or prohibit drilling based on spacing or tract size
and regulate production of groundwater
• EAA/subsidence districts excluded

8. EAA v. Day & McDaniel

9. Facts
• 1956: irrigation well drilled; used until 1970s
• Before 1983: well casing collapsed/pump removed; well
continued to produce water that was stored in holding tank and
used for irrigation and recreation
• 1993: EAA created; historic use period ends
• 1994: Plaintiffs purchase property
• 1996: Plaintiffs timely request 700 acre-feet; EAA denies based
on no historic use

10. Issues
• Did EAA err in limiting permit to 14 af?
• Do plaintiffs have a constitutionally protected interest in
the groundwater beneath their property?
• Did the EAA’s denial of a permit in the amount requested
constitute a taking?
• Are plaintiffs’ other constitutional arguments valid?

11. Holding
• Did EAA err in limiting permit to 14 af? No
• Do plaintiffs have a constitutionally protected interest in
the groundwater beneath their property? Yes
• Did the EAA’s denial of a permit in the amount requested
constitute a taking? Don’t Know
• Are plaintiffs’ other constitutional arguments valid? No

12. Analysis
• Rule of capture and ownership in place NOT mutually
exclusive
• Property interest in groundwater in place subject only to rule
of capture and GCD regulations
• Penn Central analysis
• EAA acted in accordance with EAA Act; did NOT say whether
taking occurred (now settled)

13. EAA v. Bragg

14. Facts
• Two pecan orchards, one with historic use
• EAA issued one reduced permit and denied other
• Braggs were forced to purchase water for irrigating
(10% increase in irrigation costs)
• Trial court found for plaintiffs

15. Issues
• Who is the proper party – the EAA or the State?
• Did the EAA’s actions amount to a taking?
• How should damages be measured?

16. Holding
• Who is the proper party – the EAA or the State?
• Did the EAA’s actions amount to a taking? Yes
• How should damages be measured? Value of
orchards before and after

17. Takings Analysis
• Economic impact
• Interference with investment backed
expectations
• Character of governmental action
• “Other Relevant Factors”

18. What We Know
• Land ownership includes a constitutionally-protected interest in
groundwater in place that cannot be taken for public use
without adequate compensation
• That interest does not preclude regulation by a GCD in
accordance with Chapter 36 of the Water Code
• Some limitation of groundwater production does not constitute
a compensable taking

19. What We Don’t Know
• How much regulation is too much?
• Is there a distinction between EAA and Chapter 36 GCDs when
it comes to a takings claim?
• How will different “uses” be affected?
• Will there be unintended consequences?
• How are damages are calculated? (see Bragg)

20. Groundwater Ownership
Other Noteworthy Cases*
GCD Inventory
Emerging Legislative Issues

21. FPL Farming v. EPS
• Groundwater trespass case
• Rice farmer claims wastewater from EPS injection well migrated
into saltwater aquifer beneath farmer’s land
• Trial court and court of appeals found for EPS, but TXSC held
that obtaining a permit does not provide protection against tort
liability
• On remand, Beaumont court of appeals held operator liable for
trespassing; back on appeal at TXSC

22. LULAC v. EAA
• League of United Latin American Citizens challenged EAA’s
state-mandated precinct voting system
• Argue one-person/one-vote should be used
• Special-purpose districts generally excluded
from constitutional provision

23. Forestar v. Lost Pines GCD (x2)
• Appeal of Board’s denial of
hearing request on Griffin
Industries permit
application
• Permit for 224 af/year
Directors sued in both official and individual capacities in
both cases
• Lee Co. takings lawsuit
• Uncontested permit
applications for 45K af/year
• Board granted 12K af/year
based on proposed use
during permit period

24. Homework (Current Cases)
• City of Lubbock v. Coyote Lake Ranch, LLC
• Middle Pecos Groundwater v. Fort Stockton Holdings
• Kinney County GCD lawsuits
• Cities of Richmond and Rosenberg v Fort Bend SD
• Wimberley Valley Watershed Assoc. v Hays-Trinity GCD

25. Groundwater Ownership
Other Noteworthy Cases*
GCD Inventory
Emerging Legislative Issues

26. GCD Inventory
http://www.texasgroundwater.org/resources/gcdi.html

27. Groundwater Ownership
Other Noteworthy Cases*
GCD Inventory
Emerging Legislative Issues

28. 83rd Legislature - Groundwater
• HB 1563: fees of office for GCD Board increased
from $150 to $250/day; cap still $9,000
• SB 1282: DFC proposal deadline extended to May
1, 2016
• Dozens of major groundwater bills did not pass

29. Emerging Issues – What’s Next?
• Long-term permitting
• Desalination, brackish groundwater, and aquifer storage
and recovery
• Groundwater and oil and gas (hydraulic fracturing,
injection/disposal wells)
• Well construction standards and enforcement
• DFC Appeals (see prior case law)