This document summarizes a presentation on emerging trends in groundwater case law. It discusses how the landmark case Edwards Aquifer Authority v. Day established that landowners own the groundwater beneath their property, but that groundwater conservation districts can still regulate pumping. It notes emerging issues around what regulations constitute a "taking" requiring compensation, and the extent of a GCD's authority. The document also discusses cases related to takings claims, a GCD acting within its authority, the application of oil and gas law to severed groundwater estates, and regulation affording landowners a "fair share" of groundwater. It concludes more cases on takings will likely emerge and the extent to which oil and gas principles will apply to ground

1. TAGD Leadership Training 2016
Emerging Case Law Trends
Presented by
Shauna Fitzsimmons, Attorney at Law

2. OVERVIEW
• Historical Trends in Groundwater Case
Law
• THE SHIFT: EAA v. Day
• Emerging Trends in Groundwater Case
Law

3. Historical Trends in
Groundwater Case Law
• Application of oil and gas legal principles
to groundwater ownership
• Recognition that GCDs are the state’s
preferred method of groundwater
management
• Chapter 36 gives GCDs regulatory tools to
manage the resources based on local
conditions

4. THE SHIFT
• Edwards Aquifer Authority v. Day
– Ownership in place – A property owner
owns the groundwater beneath his
property “in place”
– A GCD can regulate the pumping of that
groundwater
– Depriving a property owner the right to
produce may constitute a “taking” of his
property
– Penn Central taking analysis

5. SHIFT TO NEW ISSUES
– What is a reasonable regulation and what will
constitute a “compensable taking” ???
– To what extent can GCDs impose curtailments
under Chapter 36 without exceeding their
statutory authority ???
– What happens if the groundwater estate is
severed ???
– Should oil and gas legal principles be applied
to groundwater beyond just ownership ???

6. Emerging Trend: Takings Claims
• Edwards Aquifer Authority v. Bragg
§ EAA found liable for a taking under
Penn Central analysis
• What is a reasonable regulation and what
will constitute a “compensable taking” is fact
sensitive using Penn Central taking analysis
• Recognize groundwater user’s ability to
recover investment backed expectations

7. Emerging Trend:
GCDs Acting within Statutory
Authority
• Guitar v. Hudspeth County UWCD
• City of Conroe, et al. v. Lone Star
Groundwater Conservation District, et al.
• Fort Stockton Holding, LP v. Middle Pecos
Groundwater Conservation District, et al.

8. Emerging Trend:
Application of O/G Law to GW
Severances
• Coyote Lake Ranch, LLC v. City of
Lubbock
• City of Lubbock owns the severed groundwater
estate, Coyote Lake Ranch owns the surface
estate
• Texas Supreme Court –
• The severed groundwater estate is the
dominate estate
• The accommodation doctrine from oil and gas
law applies

9. Emerging Trend:
Application of O/G Law to GW
Ownership REGULATION
• Regulation that affords landowners their
“Fair Share” of the common resource
• Permissible groundwater production
regulations
• Local control v. Aquifer-wide management

10. GOING FORWARD
– Likely to see many cases for takings claims: how
much curtailment can a GCD impose without
committing a “compensable take”?
– How far will the Legislature or the courts go in
applying oil and gas principles to GW
management?
– To what extent will the courts affirm GCDs as
being within their statutory authority in
implementing rules based on express authority
and necessarily implied authority?

11. THANK YOU !!!
QUESTIONS ???
Shauna Fitzsimmons
919 Congress Ave. Ste 460
Austin, TX 78702
512.579.3603