Editors note: This post and our recent newspaper ads reference a link to an audio recording of the meeting they describe. The recording is not currently available due to unforeseen problems with the acquisition of the referenced recording. We expect the recording to be available within the next couple of days. If you would like me to email a link to the recording when it becomes available please send an email stating so to the following address (firstname.lastname@example.org) and I will be happy to get that to you as soon as it becomes available. In the mean time here is a link to the transcript of the presentation. It starts at the beginning of agenda item 6. Agenda Item 6
Texas courts clearly understand something about water rights that some of our water district directors refuse to acknowledge. Water belongs to the landowners, and if you take it, you better be prepared to pay for it.
This was the message that was delivered loud and clear at last week’s Brazos Valley Groundwater Conservation District (BVGCD) meeting. On the agenda was a presentation by the attorney for the district about the implications of the Bragg v. Edwards Aquifer Authority (EAA) case – a case for water rights that was decided and supported by the Texas Fourth Court of Appeals. EAA appealed the decision to the Texas Supreme Court, which ultimately let the Fourth Court of Appeals’decision stand. In other words, the Texas Supreme Court did not see enough wrong with the lower court ruling that they felt a need to get involved. Private property water rights win again.
The attorney for the water district, Monique Norman, was the opening act in the Bragg presentation to our water district board. Her presentation was, for the most part, accurate, but it lacked the clarity of the follow-up presentation that was provided by prominent Texas water law attorney Russell Johnson who offered his comments on behalf of The Brazos Valley Groundwater Rights Association. For a property rights minded person, his presentation was like sitting front row at a Merle Haggard concert. In fact, it was so good that we have provided a recording of the performance on our website so you can hear it for yourself. You can find it at www.bvgra.com.
What our attorney, Russell Johnson, made very clear was that the Bragg Case establishes many factors for our water district directors to consider when curtailing water use by landowners, such as:
- Even a partial reduction in water permitting to a landowner can be considered a taking that requires compensation.
- The statute of limitations for a takings claim runs for as long as ten years.
- That the district itself is responsible for the takings compensation to the landowner.
What this means is that our water is valuable, and if a government entity wants to take it, regardless of the reasons for doing so, the landowner must be compensated. Essentially, the Fourth Court of Appeals and the Texas Supreme Court are saying…a property owner’s unrestricted right to use the water beneath his land outweighs the importance of protecting terrestrial and aquatic life, domestic and municipal water supplies, the operation of existing industries and the economic development of the state. So if you need it you better buy it. Remember, in Day v. EAA , the Supreme Court likened the ownership of water beneath a landowner’s land to that of oil and gas – the landowner owns the water in place and “landowners do have a constitutionally compensable interest in groundwater.”