{"id":389742,"date":"2010-03-04T10:56:42","date_gmt":"2010-03-04T15:56:42","guid":{"rendered":"http:\/\/blogs.edf.org\/texaswatersolutions\/?p=12"},"modified":"2010-03-04T10:56:42","modified_gmt":"2010-03-04T15:56:42","slug":"courting-chaos","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/389742","title":{"rendered":"Courting Chaos?"},"content":{"rendered":"

\"\"<\/a>The winter rains have replenished many of the state\u2019s groundwater reserves, including the massive Edwards Aquifer<\/a>. Good thing, because depending on the outcome of the pending Edwards Aquifer Authority v. Day<\/a> case in the Texas Supreme Court, Texas groundwater law could be in chaos for the next few years.\u00a0<\/p>\n

The fundamental issue<\/a> in the case is whether an overlying landowner owns the groundwater beneath her property \u201cin place\u201d 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<\/a> took place on February 17th<\/sup> before a courtroom packed with water lawyers (including me) just itching to shout out answers to the Justices\u2019 questions. And, no wonder, because the outcome of this decision will determine whether the Texas system of groundwater management\u2014which largely relies on regulatory actions by local groundwater districts with elected boards\u2014can continue.<\/p>\n

EDF joined with other parties to file an amicus brief<\/a> in the case urging the court not to find \u201cownership in place.\u201d 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 \u201cregulatory takings\u201d 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 \u201ctaking\u201d because the permit he got from the EAA didn\u2019t 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.\u00a0\"\"\/<\/span><\/p>\n

Texas\u2019 current groundwater management system certainly isn\u2019t perfect<\/a>, 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\u2019t be good for the Texas economy.\u00a0<\/p>\n

Here\u2019s hoping the Supreme Court opts out of turning Texas groundwater law into just another guarantee of long-term employment for water lawyers.<\/p>\n

\n<\/img><\/a> <\/img><\/a> <\/img><\/a> <\/img><\/a> <\/img><\/a>\n<\/div>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

The winter rains have replenished many of the state\u2019s 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.\u00a0 The fundamental issue in the case […]<\/p>\n","protected":false},"author":4273,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-389742","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/389742","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4273"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=389742"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/389742\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=389742"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=389742"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=389742"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}