Presented by Doug Caroom - GROUNDWATER CONSERVATION DISTRICTS BETWEENA ROCK (PROPERTY RIGHTS) AND A HARD PLACE (MANAGEMENT DEMANDS) - TWCA Annual Convention 2015

1. TEXAS WATER CONSERVATION
ASSOCIATION
Presented by Doug Caroom
71ST Annual Convention
March 6, 2015
GROUNDWATER MANAGEMENT
AFTER DAY AND BRAGG

2. GROUNDWATER CONSERVATION DISTRICTS
BETWEEN
A ROCK (PROPERTY RIGHTS) AND A HARD PLACE
(MANAGEMENT DEMANDS)

3. EAA v. Day
 The property owner owns underground water in place, like
oil and gas
 Depriving the owner of the right to produce can be a taking
of his property, entitling him to compensation
 Domestic & Livestock exemption is not sufficient to protect
against taking
 Subject to regulation – Penn Central takings analysis
 Correlative Rights/”Fair Share” Doctrine – “As with oil and gas,
one purpose of groundwater regulation is to afford each owner of water
in a common, subsurface reservoir a fair share.”

4. EAA v. Bragg
 EAA liable for taking under Penn Central analysis
 Economic impact –
• Did not completely deprive owner of use of his property
• BUT – what about a purchaser who owns only groundwater
rights?
 Reasonable investment backed expectations
 Nature of the interest regulated/public interest.
 Other Considerations (need more than rain to grow
pecans)
Currently on appeal to the Texas Supreme Court – not yet
accepted.

5. MANAGEMENT EXPECTATIONS
Groundwater Conservation Districts: “the State’s chosen
method of groundwater management,” subject to multiple obligations and
directions:
 Legally obligated to implement DFC/MAG
 But the GCDs set the DFCs
 Preservation of Historic Uses -- § 36.116(b) “may preserve . . . to the
maximum extent practicable”
 Responding to local constituents, e.g., Lost Pines GCD
 Lots of local Press and Public Interest – e.g. American Statesman
coverage of Joe Beal or Electro Purification/Buda boycott

6. WHERE IS A GROUNDWATER
DISTRICT TO GO?

7. TEXAS WATER CONSERVATION
ASSOCIATION
Presented by Doug Caroom
71ST Annual Convention
March 6, 2015
GROUNDWATER MANAGEMENT AFTER
DAY AND BRAGG