The document summarizes groundwater management approaches between the North Plains Groundwater Conservation District and Edwards Aquifer Authority. It describes how the North Plains GCD allows production based on land ownership and tract size to protect property rights, while the EAA Act led to takings claims since it did not consider property rights in initially permitting regular amounts. Had the Day and Bragg cases occurred under the North Plains GCD, the parties would have been allocated production based on their land ownership to avoid takings issues. The conclusion is that groundwater districts can craft rules to address property rights without creating takings like the EAA Act did.

1. Groundwater Management
in Light of Day and Bragg

2. North Plains GCD
 Seven member elected board.
 Well spacing requirements
 Production limits based on tract size
 A flow measuring method required on permitted
wells.
 New wells must have flow meters.
 Owners of old wells may select an alternative
metering method until a new well is drilled on the
property.
 Report production annually.
 Region A Water Planning Area & GMA-1.

3. North Plains Groundwater Management -
Time Line
 1954: Board of Water Engineers designates Subdivision
No. Two North of the Canadian River in Texas and
orders the creation of the District.
 1955: Voters confirm the district on January 21st.
Elected board creates spacing rules and required
permitting in March.
 1958: Board adopts rules to create exceptions.
 1995: Adopt rules to investigate high groundwater
level declines that could lead to metering and
production limitations.

4. North Plains Groundwater Management -
Time Line (Continued)
 2005: Adopt rules to require:
 Groundwater withdrawal limits based on groundwater
under the land ownership and tract size;
 Flow meters or alternative measuring methods;
 Annual groundwater withdrawal reporting.
 2005: Joint Planning in GMA-1
 2009: Reduce production limits.
 2010: DFCs for Ogallala & Rita Blanca Aquifers
 2011: DFCs for Dockum Aquifer
 2013: Management plan to achieve DFCs.
 2014: Rules to achieve DFCs.

5. Edwards Aquifer Authority Act
 1993: 73rd Legislature Creates EAA Act
 Required 450,000 acre-feet production limit to be
reduced over time.
 Required existing well owners to file a declaration of
Historic use based on production from June 1972-May
1993. Well owners had six months to file declaration.
 Guaranteed production permit minimums for most
existing users.
 Created other types of groundwater withdrawal permits.
 1995: 74th Legislature Amends EAA Act replacing an
Appointed Board with an Elected Board.
 1996: EAA open for business on June 28th.

6. Edwards Aquifer Authority Challenge
 Existing aquifer users are entitled to a total of 572,000
acre-feet based on the guaranteed production limit
minimums required by the Act.
 No water available for additional regular permits.
 Prescriptive EAA Act requirements did not allow the
EAA to consider investor backed expectations in
issuing initial regular permits.
 Well owners were required to reduce their production
or secure additional permitted amounts from other
well owners.
 Edwards Aquifer is highly transmissive and permeable.

7. The Texas Courts
 2012: Supreme Court held in EAA vs. Day that land
ownership includes an interest in groundwater in place
that cannot be taken for public use without adequate
compensation guaranteed by the Texas Constitution.
 2013: Fourth Court of Appeals concluded in EAA vs.
Bragg that the trial court properly determined that the
implementation of the EAA Act resulted in a taking
and further concluded that the trial court erred in
calculating the compensation owed for the takings of
two pecan orchards.

8. North Plains GCD Perspective
 Since the 1950s, the District’s management method
recognizes land ownership includes an interest in
groundwater in place.
 1958: “In order to protect vested property rights, to
prevent waste, and to prevent confiscation of property,
or to protect correlative rights, the board may grant
exceptions……”
 District’s management plan and rules are consistent
with the Chapter s 35 and 36 of the Water Code and
the Texas Constitution.

9. What if Day and the Braggs were in the
North Plains GCD?
 The facts of the cases would be different:
 Both parties would be entitled to produce groundwater in
amount based on the acres owned.
 Day would be entitled to produce the amount of
groundwater close to the amount Day originally claimed in
the initial regular permit application.
 Braggs would be entitled to produce groundwater on both
farms based on their land ownership at the farms.
 Either party not satisfied with the production amount could
apply for an exception from the District.

10. Conclusion
 The EAA Act
 Not all stakeholders were at the table in the Act’s
development.
 Legislature had little time to evaluate the potential
affects of the Act (four months).
 Prescriptive legislation contributed to takings litigation.
 Groundwater Conservation Districts
 Potentially have a better knowledge of Day and Bragg
conditions within their jurisdictions.
 Can craft groundwater management methods to address
Day and Bragg conditions without creating takings.
 North Plains had 40 years to develop its groundwater
management methods based on its area’s conditions.

11. Discussion
Steve Walthour, General Manager
swalthour@northplainsgcd.org
806-935-6401