The winter rains have replenished many of the state’s groundwater reserves, including the massive Edwards Aquifer. Good thing, because depending on the outcome of the pending Edwards Aquifer Authority v. Day case in the Texas Supreme Court, Texas groundwater law could be in chaos for the next few years.
The fundamental issue in the case is whether an overlying landowner owns the groundwater beneath her property “in place” or whether ownership of the groundwater only vests once the groundwater has been captured through pumping. This question has produced a massive amount of briefing for the court. Oral argument took place on February 17th before a courtroom packed with water lawyers (including me) just itching to shout out answers to the Justices’ questions. And, no wonder, because the outcome of this decision will determine whether the Texas system of groundwater management—which largely relies on regulatory actions by local groundwater districts with elected boards—can continue.
EDF joined with other parties to file an amicus brief in the case urging the court not to find “ownership in place.” Our reasoning: such a finding, which we do not believe is in any way required by the common law, would open up groundwater district management actions to an unlimited amount of “regulatory takings” claims from people seeking to be financially compensated for pumping restrictions. (The plaintiff in the Day case was seeking over $4 million in compensation for an alleged “taking” because the permit he got from the EAA didn’t provide for as much pumping as he wanted.) These restrictions are often necessary to maintain the aquifer levels for the benefit of all users. In systems like the Edwards, pumping limits are also needed to maintain the spring flows that are so critical to sustaining river flows. If districts were faced with high dollar takings claims on every action, they would be completely hamstrung in trying to carry out their legislatively authorized duties to protect and conserve groundwater. 
Texas’ current groundwater management system certainly isn’t perfect, but it has generally provided a fair and balanced approach to conserving this critical resource. Districts are subject to a number of legislative and due process constraints, arbitrary decisions can be challenged in court, and, ultimately, the board of directors can be voted out of office. Moreover, throwing our groundwater law into chaos would also spill over to cause great uncertainty in regional water planning, the maintenance of surface water rights and the ability to protect river flows for fish and wildlife in those rivers that are fed by springs. Finally, because so much of the investment and economic activity in this state depends on secure water rights, an adverse decision in the EAA v. Day case certainly won’t be good for the Texas economy.
Here’s hoping the Supreme Court opts out of turning Texas groundwater law into just another guarantee of long-term employment for water lawyers.