Come And Take It: Court Ruling Dares Regulators to Limit Pumping

water

A major decision came down in the arcane, but important world of Texas water law last week—opening the door to more lawsuits against local groundwater boards for regulating water use across the state.

In Edwards Aquifer Authority vs. Bragg Pecan Farm, the Texas Fourth Court of Appeals ruled on Wednesday that the Edwards Aquifer Authority owes landowners money for “taking” their groundwater by limiting pumping.

Groundwater regulators and environmental groups have long worried that such “takings” claims could imperil the state’s complicated and patchwork system of managing aquifers, many of which are increasingly stressed by drought and booming demand. Bragg is the first such “takings” case in Texas—and thus is being closely scrutinized by water interests across the state.

“What makes this case so important and potentially scary, certainly from the standpoint of the survival of the Edwards Aquifer Authority and therefore the survival of all the people who depend on that water, is that this is the first benchmark,” said Amy Hardberger, a professor at St. Mary’s University School of Law in San Antonio. Another environmental law professor wrote that it was a “deeply flawed and harmful decision.”

However, Russell Johnson, an Austin attorney who represents landowners, says the case simply establishes a balance. “It clarifies that the government’s good reasons for regulation don’t trump the property rights of landowners who have made those investment-backed expectations,” he said.

Although he shrugs off the notion that Bragg could make it impossible to sensibly regulate groundwater, he argues that groundwater districts will have to evolve.

“I believe most of the groundwater conservation districts in Texas want to preserve the status quo and that’s going to be hard to do and simultaneously respect groundwater rights. They’re just going to have to adjust to the fact that they can’t say no, they can’t just say this resource is already stressed .”

JoLynn and Glenn Bragg sued the Edwards Aquifer Authority after it denied them the full amount of water they claimed to need to irrigate two pecan orchards in Medina County, west of San Antonio. The couple argued that the allocated amount was insufficient for mature pecan trees, diminishing their crop and economically wrecking their livelihood.

In May 2010, a district judge ruled in favor of the Braggs, writing in his decision that the couple’s “life plan has been undermined, and their investment severely devalued.” He calculated their loss—based largely on the market price of Edwards Aquifer water—at $867,000. Both the Edwards Aquifer Authority and the Braggs appealed the decision. The appellate court, while upholding the “takings” claim, decided the compensation should be calculated in a different way.

“We conclude the ‘property’ actually taken is the unlimited use of water to irrigate a commercial-grade pecan orchard, and that property’ should be valued with reference to the value of the commercial-grade pecan orchards immediately before and immediately after” the permits to pump were issued. That amount is almost certain to be less than the trial court awarded. And you can imagine the inventive arguments each side will come up with to calculate such an award.

The appellate court decision comes on the heels of a landmark Texas Supreme Court ruling last year. In that case—Edwards Aquifer Authority vs. Day—the Supreme Court leaned heavily on oil and gas law to define for the first time the precise nature of groundwater ownership in Texas. The Supreme Court held that the landowner has an absolute vested property right to groundwater in place, just like oil and gas. The court also ruled that “landowners do have a constitutionally compensable interest in groundwater.” In other words, landowners could make a case that groundwater districts could owe them money when they limited or denied permits to pump.

Bragg was the first instance in which the Day decision was applied. All three attorneys I spoke to agreed that the Bragg decision, if it stands, is likely to open the door to more lawsuits. Johnson said takings claims will be most ripe in areas where groundwater districts are imposing pumping limits. He points to the Panhandle in particular, where groundwater managers are trying to slow the depletion rate of the dwindling Ogallala Aquifer.

Greg Ellis, an attorney and formal general manager for the Edwards Aquifer Authority, argues that the Bragg decision “completes a Catch-22″ by perversely opening the door to lawsuits from landowners who end up being punished for conserving their water. Landowner Jane and landowner Bill live next to each other over a stressed aquifer. Landowner Jane chooses to leave her groundwater alone for future generations. Landowner Bill, rationally assuming that he’d better get his before the whole thing drains away, pumps like crazy to water a corn crop or livestock or to fill a tank. The local groundwater district, trying to avoid a takings claim in the wake of Bragg, has very lax rules and allows Bill to proceed. But given the “secret, occult, and concealed” nature of groundwater, Bill ends up draining the water beneath Jane’s land too. In such a scenario, Ellis argues, Jane herself would have a takings claim.

Johnson says he “doesn’t think much” of Ellis’ argument because the grandaddy of Texas water principles—the Rule of Capture, aka May the Biggest Pump Win—protects against just such a scenario. “Under the Rule of Capture, you have no protection whatsoever, none, zero. So how can a district that’s attempted to apply some protection be held responsible for not preventing a, quote, taking when the landowner had no right to protect that in the first place?”

(If you’re confused about Rule of Capture, allow Daniel Day-Lewis to explain:)

 

Both fascinating and tendentious, these arabesque legal arguments may ultimately succumb to a more fundamental problem: Namely, Texas is in a deepening water crisis. The court largely skirted this issue, though it acknowledged that the Bragg farms are in a “semi-arid” part of “drought-ridden Texas.”

What good is a property right or carefully-calibrated regulation when the resource is gone? Should the government really have to pay people for not taking an action that, taken by others similarly-situated, would destroy a resource? Robin Kundis Craig, a law prof at the University of Utah, puts it aptly:

[T]he Texas Court of Appeals both has attempted to elevate historical water rights over new ecological realities and created a major legal impediment for any government entity trying to rationally address changing–especially declining–water resources. Endangered species or not, government regulation or not, overpumping the Edwards Aquifer and increasing droughts in Texas will eventually destroy the value of all private property claims to water (and maybe the value of all private property, period) in many parts of Texas. Instead of encouraging the Texas Legislature and the EAA to deal rationally with these new realities–including the reality that there just isn’t enough water for everyone to do everything they want for the rest of their lives–the Texas courts have effectively forced the EAA to assume all costs of attempting to ameliorate the shortage.

Should the State of Texas or EAA callously let the Edwards Aquifer go dry? I’d like to argue “no”–but I don’t think it should have to pay landowners who rush headlong into that disastrous result, either. Constitutional “takings” clauses need to accommodate changing ecological realities and the tragedy of the commons, or they will just make those tragedies worse.

  • SoberMoney

    Of course implementing policies that save or limit the mindless consumption of our growingly sparse water here in the Loon Star state is considered “theft” but some right wing nut legal authority.

    Where does this twisted logic come from?

    Next,

  • A. Zigon

    And nowhere in the article did it refer to the vast amounts of water required for fracking and the fact that once it’s used it is useless. So it would appear that obscene usage for oil profit is ok but personal use or even small commercial use such as the Pecan Farm is bad. We have a crisis for sure and greed runs ramapant.

  • schafersman

    This is an excellent news report about the most important problem facing Texas: how to regulate water availability in the face of implacable climate change, permanent drought, and inevitable aquifer decline. For anyone who scientifically understands the problems, it is obvious that Texas cannot continue to exploit freshwater as it has in the past. Business as usual is impossible. Agricultural irrigation on a large scale has never been a good idea, since the soil inevitably becomes more salinated, but today the problem is much more severe since groundwater in every aquifer in Texas is being removed much faster than it can possibly be recharged. Already many wells are pumping groundwater that is excessively saline because the water table has declined so drastically. Recharge at rates that allow sustainable extraction at present rates will never occur due to climate change and permanent drought. Water to provide for household purposes for the growing Texas human population can only be preserved by immediately halting all large-scale agricultural irrigation in this state.

    Thus both Texas court decisions in Edwards v Day and Edwards v Bragg were deeply disturbing, perverse, and irresponsible. It is hard to conceive of more irrational decisions when faced with the huge amount of scientific knowledge we now have that supports strict groundwater regulation to protect and extend the remaining supply. Only judges with an extreme ideology, an active antipathy to science, and an aggressive preference to support the economic desires of small numbers of wealthy landowners who practice large-scale agricultural irrigation over the needs of the vast majority of Texas citizens, not to mention the needs of many non-human species who depend on groundwater and stream water for their existence. Who among Texans possess these radical and irrational qualities? How were these obtuse, ignorant, and ideologically-extreme judges able to be appointed or elected to their present positions that allow them to make life-quality decisions for all Texas citizens?

    Fresh water is a “common,” a natural resource that people can easily use. Since the resource (both groundwater and stream water) is easily available, it is possible, and indeed likely, that the resource will be exploited by individuals making rational decisions on a small scale that quickly add up to large-scale over-exploitation by many citizens, thus making the limited or finite resource unavailable to all. The “Tragedy of the Commons” is that the utilization process by individuals is rational, but the cumulative effect is irrational. In effect, our own rational human nature betrays us when we ignore society. The only way to mitigate this tragedy, as Garrett Hardin first showed conclusively, is for government to regulate use of the resource in a rational way for the responsible use by all. That is, the rational decision-making must be moved to a higher level that takes into account society as a whole. When governments or their agencies are prevented from regulating resource exploitation, the tragedy will take effect, and this is happening now with many natural resources (air, water, top soil, benign and healthy climate, plants, animals, etc.). Shortages of fresh water for ordinary citizens during this drought, when plenty would be available if industrial irrigated agriculture didn’t exist, is already occurring in Texas.

    The only way to fight these perversely irrational court decisions is to take the matter up to the federal courts. The issue can be federalized using several laws, such as the Endangered Species Act (many species that rely on groundwater and stream water–much stream water in Texas is supplied by springs, and overuse of stream water increases its pollution–are being harmed; these include freshwater mussels, salamanders, etc.), the Equal Protection Clause (being denied equal protection of the laws, in this case laws that should protect and preserve groundwater for use by all citizens and not preferential treatment for a few), the Safe Drinking Water Act (it can be shown that both groundwater and stream water is being harmed by excessive agricultural irrigation), and the Clean Water Act (both groundwater and stream water is being degraded by excessive agricultural irrigation practices). One could even turn the perverse “takings” ruling against the irrigators and frackers, demonstrating that their practices are “taking” water from ordinary citizens that need it in proper amounts for drinking, bathing, and small-scale landscape use. I hope and expect that citizens groups will hire environmental attorneys to make these arguments in federal lawsuits.

    • T Eugenio

      Schafersman,

      In your comment on the judges you state–

      “Only judges with an extreme ideology, an active antipathy to science, and an aggressive preference to support the economic desires of small numbers of wealthy landowners who practice large-scale agricultural irrigation over the needs of the vast majority of Texas citizens, not
      to mention the needs of many non-human species who depend on groundwater and stream water for their existence.” (Don’t believe this is a complete sentence but I get it)

      Doesn’t this seem a bit extreme considering the Braggs had a 60 acre orchard and a 42 acre orchard? Did you actually read the case?

      I agree water regulation is needed but the Bragg’s purchased their 60 acre parcel in 1979 (34 years ago) and planted 1,820 pecan trees. They purchased the 42 acre orchard in 1983 which has been planted with 1,500 pecan trees. How many years did they have to grow the trees before there was a commercially viable pecan crop? Probably 10 or 15. Fourteen years after planting
      the orchards the EAA came into existence. Who has more of a right to the water? The Bragg’s who lived in Texas and detrimentally relied on the laws at the time the orchard decision was made or all the people that are entering Texas at the behest of all the city economic development departments and others that are helping cause the water problem.

      There is a more fundamental issue at hand that does not relate to water. Grandfathering. In
      order for the Bragg’s or any other business person to make an investment in Texas, they have to know the rules are not going to change. And if they do, they will be treated fairly and compensated by all that are benefitting from the new regulations. If we are trying to limit that landowner’s
      rights he should be compensated. (Let’s say I am a developer and purchase a property prior to the City deciding that new developments are subject to a tree ordinance. Should that developer have to go bankrupt? Should all the citizens of the city pay a fee to protect and plant trees?)

      Anyway, I believe that a majority of the people in agriculture are not the wealthy landowners you describe and are predominantly the ones trying to make a living and are scraping by year to year.

    • icdelight

      Error #1: Your suggestion that groundwater is a “common”. Groundwater is owned in place by the owners of the land it lies beneath. Surface water is owned by the state of Texas. Water is not a “common” in Texas or any other state.

      Error #2: Your suggestion that the decision was somehow “perverse”. You’ll note that the Braggs didn’t get the water, they are asking to be compensated for the groundwater that the EAA took from them. The founding fathers of this county did recognize that there would be times that takings for public use would be necessary but they also recognized that the property owner from whom the government took should be compensated. The 5th Amendment of the U.S. Constitution provides that private property shall not be taken for public use without just compensation. The 5th Amendment is also incorporated against the states. In addition, Art. I, Sec. 17 of the Texas Constitution states: “no person’s property shall be taken, damaged or destroy for or applied to public use without adequate compensation being made”. Here there is no question that the EAA is taking property that belongs to the landowner. The question is whether it is a compensable taking. The taking in this case was no mere incidental taking. The taking was considerable and of course it is compensable.

      Error #3: Your suggestion that the feds would be able to change anything. The feds can’t help you now. As a practical matter the EAA was formed as a result of federal legal proceedings. Since the groundwater is owned by the property owners and not the state of Texas one might pontificate whether it really should be the feds that pay for takings, not the EAA. However, that is a complicated issue. Nonetheless if you are going to form a government with the primary purpose of taking property from its owners for the alleged “public use”, you better be prepared to pay for the takings. It’s rather odd that you espouse taking property belonging to others for your “greater good” but protest compensating individuals from whom the property was taken. Last I looked U.S. and Texas constitutions were still intact. Your “takings” analysis is deeply flawed. Where do you live, Wimberley?

      The philosophy of the general manager at that time was that until the groundwater was captured it did not belong to the property owner and therefore his denials of access to the groundwater were not takings. This is one reason he was a defendant in the case. This was a very twisted logic and a very expensive lesson to the EAA (not its former GM of course) and caused considerable harm to property owners. When you use a government to take property you shouldn’t be surprised that sometimes you have to pay for it. The good news is that this has had a bit of a sobering effect on a governmental body (EAA) that had been acting as if other people’s property was its for the taking with impunity. No more!! Now ya gotta pay.

      • schafersman

        Error #1: icdelight’s reply is a perfect example of the misunderstanding and confusion that surrounds this topic. A “common” is a limited or finite resource belonging equally to all or shared by a society. The term “common” in this sense is a neologism: the term was historically used for the central parkland of a community available to all residents and on which, for example, cattle were grazed in common. In this modern sense, a common is usually identified as such when it is being exploited or polluted by humans beyond available or sustainable capacity, a condition faced by all natural resources today except renewable energies (solar, geothermal, tidal, wave, etc.) and ocean water; thus it includes air, fresh water, soil, vegetation, animal life, etc. Groundwater is therefore a common in the scientific or empirical or natural sense, that is, groundwater is a common in objective reality.

        icdelight’s error is that he does not recognize that a law does not have to correspond to reality. On this topic, in Texas, it does not. All other Western states have changed their laws concerning groundwater so they are based in reality, but Texas has an extremely high proportion of fantasy-prone citizens who frequently deny reality, so the law has not been changed here, with predictably tragic results. Texas law provides that (1) the surface owner also owns the groundwater underneath the surface, and (2) the surface owner therefore has the right (the Rule or Right or Law of Capture) to extract as much of his water as he wants from under his own land. This law was created in 1904 when the Texas Supreme Court first adopted the rule of capture for groundwater in the landmark 1904 decision Houston & Texas Central Railroad Co. v. East. The railroad company completed a water well on its property near Dennison, Texas to supply water for its locomotives. The well produced 25,000 gallons of water daily, lowered groundwater levels in the aquifer, and dried up the household well of a neighboring landowner (East). The landowner sued the railroad for damages. The court notoriously asserted that the rule of capture applied to groundwater in Texas and decided the railroad was not liable for damages: “Because the existence, origin, movement and course of such waters, and the causes which govern and direct their movements, are so secret, occult and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty.”

        One can see that the law was created in profound ignorance and was thus an irrational attempt to reach an arbitrary decision governing a natural resource. IF a surface owner’s groundwater stayed only under his property and was separated from the groundwater under his neighbor’s property, or IF groundwater was an unlimited resource, then the Rule of Capture (RoC) would be a logically rational way to determine one’s water rights. Perhaps the presumptuous thought that groundwater behaved like this was in the minds of the Justices when they wrote that the origin and movement of groundwater was “secret, occult and concealed” so they could be irrationally hopeful. Of course, the presumptions are both quite wrong. Groundwater migrates underground in aquifers under the surface property of many owners and its abundance depends on the both extraction and recharge, so it is not unlimited. When a surface owner grossly over-pumps an aquifer, he is taking groundwater from his neighbors, thus affecting their quality of life. This was spectacularly demonstrated when Clayton Williams Sr. began pumping groundwater to irrigate his thirsty alfalfa fields directly upstream of the groundwater flow that kept Fort Stockton’s Comanche Springs supplied with water. When the pumping, and eventually a drought, began, Comanche Springs dried up. The city sued CW Sr. but he won in another notorious decision in the 1950s which upheld the RoC. CW Jr. today keeps the pumping going and the springs dry. When the springs went dry, Fort Stockton lost its natural swimming pool and hundreds of families who used the Comanche Springs runoff to irrigate their small farms became destitute. The most recent notorious example of the stupidity and wastefulness of the RoC is the catfish farmer who was pumping 25% of the flow of the Edwards Aquifer–the aquifer that supplies water to Austin, San Antonio, and many other cities–in which to grown his fat catfish. The cities were forced to pay this guy about $25 million to buy his water rights and protect the water supply for millions of their citizens.

        Today, climate change and regional warming in the American Southwest, including West Texas, have created drought conditions that climatologists predict will become permanent. According to these scientists, aquifer recharge won’t regain its historic levels in this region. With accelerated pumping and much less recharge, Texas aquifers (the ones in West and Central Texas) are now in danger of quickly being permanently drained. Even today many aquifers are so low that the water in them has become dangerously salty. Water tables have dropped so much that wells have had to be deepened. So common use of a limited resource has led to the depletion of that resource to the detriment of all.

        Error #2: I described above how Texas law does not conform to scientific, natural, and empirical reality. I think the adjective “perverse” applies rather well to this situation. It follows that court decisions made in conformance to the law rather than to objective reality are perverse. IF the law were changed to conform to reality, court decisions would no longer be perverse.

        I am quite aware of the 5th Amendment, which mandates that private property cannot be taken for public use without just compensation. This part of the amendment has a long and complex legal history which I won’t get into here. However, governments are allowed to take private property if just compensation is provided. The questions usually involve what constitutes “just compensation” but also what is “private property.” icdelight’s argument is that the Braggs deserved (and received, by the Texas Supreme Court’s–in my opinion–perverse, illogical, and greatly destructive decision) to be fairly compensated for their appropriated (“taken”) private property. icdelight’s premise is that the Braggs owned the groundwater, which is obviously what the court believed to reach their decision, since private ownership of groundwater is implicit in the RoC.

        My point, however, is that it is actually impossible for any person to “own” groundwater. What the Braggs owned, and what every other property owner truly owns, is the right to extract the groundwater, not the right to own it. I clearly explained that in the real world groundwater is a common and is owned by society in common; it is not and cannot be owned by private individuals since this flies in the face of objective, natural, empirical, and scientific reality (groundwater flows beneath the property of many so no single person can own it; one person’s pumping of groundwater will lower the water table in the wells of others; if groundwater is in limited supply other surface owners suffer if a single owner takes most or all of it, etc.; the fact is that there are no subsurface property boundaries in the aquifer as there are on the surface). I explained that the law, the RoC, holds the opposite belief that is not based in reality: that groundwater is private property in the same way that surface land is private property. As long as we have the RoC, court decisions regarding groundwater extraction will continue to be wrongly decided to the detriment of the public good.

        Now here’s the key point: IF the RoC were abandoned, surface owner’s rights would be scientifically, objectively, and correctly judged by their right to extract groundwater, which is the correct method. Texas law does make the distinction between ownership of and right to extract groundwater, but the RoC makes the application of this distinction difficult. As long as groundwater is plentiful and there is enough for all, property owners should be allowed to take as much as they want for their private use. But if–as is the case now and will now be forever due to permanent regional warming–groundwater is limited, then private extraction should be regulated by a government authority and pumping limited. If this became the case by abandoning the RoC, there would be no “taking” under the 5th Amendment. Texas law explicitly permits appropriation of private water rights for the common good (public use). Without the RoC, there would be little or no compensation, for in that situation so little could be extracted under permissible regulation that the right is worth little. Simply reducing the permissible extraction amount would solve most allocation problems, so no appropriation or taking is necessary. I earlier made the point that without conservation of groundwater by abandoning the RoC and instituting government regulation by a combination of state agency and local groundwater conservation districts, soon the amount of fresh groundwater available to any single person or to society will be little to nothing. This is the result when the law fails to conform to reality and state courts issue irrational decisions that make conditions worse.

        So, the Texas Constitution says that, “no person’s property shall be taken, damaged or destroy for or applied to public use without adequate compensation being made.” Groundwater is a common, so today it is not any person’s property by any natural or scientific reasoning, and if the RoC can be removed from statute either by legislative action or by court decision, it would also not be any person’s property by legal reasoning. In either case, no compensation is necessary or needed since no person’s property would be taken for public use if extraction was regulated.

        Error #3: Since groundwater is “owned by the property owners” only by an irrational and reckless law, it makes sense to change the law to something realistic and sensible that creates a sustainable supply of groundwater (even that is probably no longer possible today). The irrational and reckless law is a state law and, as you know, federal law trumps state law. I listed several examples of ways current federal law could be used to legally overturn the RoC and stop the dangerous and misguided over-pumping of groundwater for large-scale irrigated monoculture in Texas. I’m sure environmental attorneys have already thought of these possibilities. I believe all have been tried in other states. Why haven’t they been attempted in Texas?

        It is clear that Texas still has the RoC only because a small group of politically-powerful large land holders want to keep the law so they can profit by their access to groundwater. They would be happy to give ordinary citizens greater supplies of fresh water . . . for a price, a high price since the large land holders have something of a monopoly due to the RoC. And what is the “alleged public use”? To provide sufficient freshwater to increasing numbers of Texas citizens so they can survive. That is a very important public use and not one “alleged” at all. Texas has already witnessed massive shortages of groundwater in some localities and a decrease in water quality in many other areas as aquifers have drained and become more saline. This situation is only going to intensify and become worse.

        • icdelight

          “Guest” sounds as ignorant as schafersman:

          1. Guest said: “icdelight’s reply is a perfect example of the misunderstanding and
          confusion that surrounds this topic. A “common” is a limited or finite
          resource belonging equally to all or shared by a society. “

          ….and that’s why you lose by calling groundwater a “common”. It is not a common any more than oil and gas or land are “common”. The ownership of groundwater does NOT belong equally to all in this or any other state.

          Guest also said: “icdelight’s error is that he does not recognize that a law does not have to correspond to reality. On this topic, in Texas, it does not. All
          other Western states have changed their laws concerning groundwater so
          they are based in reality, but Texas has an extremely high proportion of
          fantasy-prone citizens who frequently deny reality, so the law has not
          been changed here, with predictably tragic results. Texas law provides
          that (1) the surface owner also owns the groundwater underneath the
          surface, and (2) the surface owner therefore has the right (the Rule or
          Right or Law of Capture) to extract as much of his water as he wants
          from under his own land. ”

          The only disconnect from reality is Guest, er Schaferman. Other Western states have NOT “changed their laws” as claimed. Moreover, it really doesn’t matter if 49 states take one position and 1 takes another. It’s obvious that you are a collectivist/communitarian. Your philosophies haven’t worked anywhere.

          You are also incorrect regarding the Rule of Capture. The Rule of Capture provides both a right and a defense. The right to withdraw is constrained wherever there is a groundwater district. There are about 100 of them across the state now. “Unlimited withdrawals” is your fantasy, not reality. Moreover, one cannot engage in waste of the groundwater. Ownership does not imply unlimited or unregulated withdrawals for groundwater any more than it does for oil or gas. Keep your rant up but you will lose all day long.

          2. Guest said: “I described above how Texas law does not conform to scientific, natural, and empirical reality.”

          The only thing apparent is YOUR disconnect from reality. This aspect of groundwater law is no different than well-established oil and gas law. Keep wasting your time making your ridiculous “commons” argument.

          3. Guest said “Since groundwater is “owned by the property owners” only by an irrational and reckless law,…”

          Ha, ha – meaning that you concede you have no legal basis for your position.

          Guest also said “The irrational and reckless law is a state law and, as you know, federal law trumps state law.”

          Not so fast. Federal law does not change the definition of who owns the property under state law. The landowners own the groundwater – not the state of Texas and not the federal government. End of story.

  • Mark McPherson

    Under Texas law, groundwater is owned privately. The state does not own Texas groundwater. So when the state, or its agent (water district) wants to curtail a right privately owned, for the benefit of the public, it imposes a cost on individual owners that should be borne by all of society. This causes “inverse condemnation”. Public use of private property via regulation results in compensation being due the private property owner. These are not controversial principles. They’ve been around since the Bill of Rights (12-15-1791).

    As for the “vast amounts of water used for fracking” nothing could be further from the truth. In the 2012 State Water Plan, Figure 3.6 depicts the volumes of water used for irrigation, municipal (“city water”), steam-electric, manufacturing, mining, and livestock. Of those uses, mining uses the LEAST amount of water. The problems we are facing are the result of dramatic increases in municipal uses. St. Augustine grass is the top culprit here. So if conservation is your game we all need to start reducing water use at our residences.

  • icdelight

    This is pitiful news reporting with a recurring slant – always promoting the deprivation of property and the denial of individual property rights for vague benefits for a nebulous “community”. I’m not surprised the author lives in Wimberley.

    “Ellis” is conveniently not identified in the article. “Ellis” is the attorney who as general manager of the EAA took the position that the only time a taking occurred was if the landowner pumped the groundwater and the EAA subsequently took that collected groundwater from the land owner. From this twisted legal rationale, Ellis rationalized that a policy prohibiting all access to groundwater was not a taking for which compensation was due.

    Ellis had no problem selling that logic to the irrational environmentalists gangs/cults that previously controlled the Hays Trinity Groundwater Conservation District. At the time, the district had been overwhelmingly controlled by the environmentalist gangs/cults. When voters got wind of what the environmentalists were trying to do they tossed out the environmentalists in 2010. The “environmentalists” were nothing more than anti-change/growth cult trying to utilize control of water to generate money for their cult leaders and to further their anti-change/growth agenda.

    Two years later EAA v. Day came out – affirming the existence of rights that the voters of HTGCD already knew about. It should be noted the Ellis was the general manager of EAA who provoked the EAA v. Day litigation. Why wasn’t that mentioned? The EAA case was pending for a long time. During the pendency of that case, Ellis moved on into private practice and filed amicus briefs on the dime of and in the name of other groundwater conservation district clients in a vain effort to defend his actions while at the EAA.

    The author also failed to mention that Ellis was actually a defendant in the initial long ongoing Bragg v. EAA litigation. Why wasn’t that mentioned?

    The victory for the landowners was a long time in coming in both the Day case and the Bragg case. The Day case started in 2000. The Bragg case started in 1996.

    • Forrest Wilder

      The omission of Greg Ellis’ first name was an editing error that somehow didn’t get noticed by me or the editor of the story. I will update the story and include his affiliation with the EAA. The article also quotes Russ Johnson, whom nobody will mistake for an “irrational environmentalist.” Also: I don’t live in Wimberley, I’m from there.

      • icdelight

        Errors are understandable. However, the comment was the result of an observations across several articles.

        I did not make any statement to suggest that Russ Johnson would be labeled an irrational environmentalist. I referred to former board members of the Hays Trinity Groundwater Conservation District (“HTGCD”). Mr. Johnson has never been a board member of the HTGCD. Those former board members were run out of office once property owners and tax payers became educated as to what they were up to.

        I will note that you no longer live in Wimberley. I don’t blame you. I wouldn’t want to live in such a corrupt city either.

        For an example of irrational environmentalists and city politicians making a fool of themselves catering to the irrationals, watch this video of members of the Wimberley city council and a few irrational environmentalists testifying before the House Committee on Special Purpose Districts April 24, 2013 (start at about 44:45):

        http://www.house.state.tx.us/video-audio/committee-broadcasts/committee-archives/player/?session=83&committee=448&ram=13042408448

        (83rd(R) Session, House Committee on Special Purpose Districts, April 24, 2013 8:00-9:58AM starting 44:45)

        (For grins, go to about 42 minutes and watch Commissioner Conley get chastised for trying to testify against the wrong bill)
        Ellis has certainly harmed the families he put through 20 years of litigation while promoting his takings without compensation agenda. Ellis was involved in both the Bragg and the EAA v Day cases. In particular, Ellis was the individual that provoked those lawsuits in the first place in his role as general manager for the EAA. Keep that in mind. I’m not sure Greg Ellis has ever won a case against Russ Johnson. Hopefully truth, justice, and the American way will prevail over Ellis’ anti-property rights and takings-without-compensation agendas.

  • lynnatwax

    I have to agree with Mr. Shaferman on many of his points, however us Texans will go to any length to protect our private property rights. Until all of us begin to be good stewards of what God has given us to protect and leave for future generations there may not be any hope to reverse the way we are going. I once thought of retiring to the hill country, but the future is not bright for this part of Texas due to the water depletion and growing population. Many towns in North Texas have been on some sort of water restriction for more than a year and it is not getting any better. If Texas doesn’t come up with a good sustainable water plan we will all be in trouble down the road in a few years.

    • schafersman

      lynnatwax, I understand your feelings about private property rights, but because of the Tragedy of the Commons I described, no amount of good stewardship will solve the problem of water availability. Increased demand because of a growing state population and continued waste of a finite and now very precious resource due to the Law of Capture will inevitably result in inadequate freshwater supplies without very restrictive government regulation. This means applying the same state regulations to groundwater that are currently applied to stream or surface water. One can be as rational and conservative and sustainable as one wants to be a good steward, but tragedy will prevail without public (i.e. state government) regulation. You just can’t expect every Texas citizen to be a good steward with everyone else’s best interest at heart. Resource exploitation doesn’t work that way. And I might add that in the end you advocate the right solution: a good sustainable state water plan. That’s state regulation and an end to the Rule of Capture. A state water plan doesn’t increase the supply of freshwater (except for desalination of seawater or formation water), it only regulates the water we have now. Because of climate change, don’t expect nature to supply more water, either.

  • schafersman

    T Eugenio is right about my incomplete sentence, the result of writing too fast and too densely. The sentence should end with a final clause, “could write such a decision.” I did read the Bragg decision; the principle is the same whether it applies to a 60-acre orchard, a 10,000-acre ranch, or a catfish farm that uses one-quarter of the Edwards Aquifer output. The Braggs could have been grandfathered in to some extent but the law of capture should not have been supported. Austin and San Antonio had to buy out the catfish farmer for tens of millions of dollars to solve their small problem of providing drinking water to millions of citizens. Does this make sense?

    Both T Eugenio and Mark McPherson note that in Texas groundwater is privately owned by the surface owner (the rule of capture), and “public use of private property via regulation results in compensation being due the private property owner.” Well, yes and no. Texas is the only Western state (the states with major groudwater availability issues) that still has the RoC, a law that allows the colossal waste of a finite and valuable natural resource (a common, as I described) for the benefit of a few individuals rather than citizens as a whole (the same is not true for stream water, for example, which is state owned and regulated). The rule should have been abandoned decades ago as other states did when faced with similar issues. Now, abandoning it will cause great hardship to those few individuals. So what. Abandon it we must or soon there will be no groundwater at all. Regulation is needed now to prevent disaster. The surface and water rights owners will be compensated–with the right to withdraw much less groundwater than they had ever imaged or hoped for, because the alternative is withdrawing no groundwater at all if current legal conditions prevail. Didn’t I clearly explain that all the aquifers in Texas are now being or soon will be mined faster than recharge? And that no amount of recharge can today keep up with current levels of withdrawal? Either regulation prevails or the state goes without groundwater. When is the law going to catch up with reality? Ideology has prevailed for too long.

    It is true, as McPherson states, that fracking takes only a small percentage of groundwater. Dryland monoculture irrigation is the major exploiter of groundwater today using 55-60%, and I think it should be banned by law for that reason; plus it is wasteful when sprayed, as most of it is, because of excessive evaporation and it salinates the soil. Municipal use will increase for the next 50 years due to population growth. My point was only that freshwater used for fracking is a new and unpredicted demand that is accelerating the rate of withdrawal.

  • schafersman

    Error #1: icdelight’s reply is a perfect example of the misunderstanding and confusion that surrounds this topic. A “common” is a limited or finite resource belonging equally to all or shared by a society. The term “common” in this sense is a neologism: the term was historically used for the central parkland of a community available to all residents and on which, for example, cattle were grazed in common. In this modern sense, a common is usually identified as such when it is being exploited or polluted by humans beyond available or sustainable capacity, a condition faced by all natural resources today except renewable energies (solar, geothermal, tidal, wave, etc.) and ocean water; thus it includes air, fresh water, soil, vegetation, animal life, etc. Groundwater is therefore a common in the scientific or empirical or natural sense, that is, groundwater is a common in objective reality.

    icdelight’s error is that he does not recognize that a law does not have to correspond to reality. On this topic, in Texas, it does not. All other Western states have changed their laws concerning groundwater so they are based in reality, but Texas has an extremely high proportion of fantasy-prone citizens who frequently deny reality, so the law has not been changed here, with predictably tragic results. Texas law provides that (1) the surface owner also owns the groundwater underneath the surface, and (2) the surface owner therefore has the right (the Rule or Right or Law of Capture) to extract as much of his water as he wants from under his own land. This law was created in 1904 when the Texas Supreme Court first adopted the rule of capture for groundwater in the landmark 1904 decision Houston & Texas Central Railroad Co. v. East. The railroad company completed a water well on its property near Dennison, Texas to supply water for its locomotives. The well produced 25,000 gallons of water daily, lowered groundwater levels in the aquifer, and dried up the household well of a neighboring landowner (East). The landowner sued the railroad for damages. The court notoriously asserted that the rule of capture applied to groundwater in Texas and decided the railroad was not liable for damages: “Because the existence, origin, movement and course of such waters, and the causes which govern and direct their movements, are so secret, occult and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty.”

    One can see that the law was created in profound ignorance and was thus an irrational attempt to reach an arbitrary decision governing a natural resource. IF a surface owner’s groundwater stayed only under his property and was separated from the groundwater under his neighbor’s property, or IF groundwater was an unlimited resource, then the Rule of Capture (RoC) would be a logically rational way to determine one’s water rights. Perhaps the presumptuous thought that groundwater behaved like this was in the minds of the Justices when they wrote that the origin and movement of groundwater was “secret, occult and concealed” so they could be irrationally hopeful. Of course, the presumptions are both quite wrong. Groundwater migrates underground in aquifers under the surface property of many owners and its abundance depends on the both extraction and recharge, so it is not unlimited. When a surface owner grossly over-pumps an aquifer, he is taking groundwater from his neighbors, thus affecting their quality of life. This was spectacularly demonstrated when Clayton Williams Sr. began pumping groundwater to irrigate his thirsty alfalfa fields directly upstream of the groundwater flow that kept Fort Stockton’s Comanche Springs supplied with water. When the pumping, and eventually a drought, began, Comanche Springs dried up. The city sued CW Sr. but he won in another notorious decision in the 1950s which upheld the RoC. CW Jr. today keeps the pumping going and the springs dry. When the springs went dry, Fort Stockton lost its natural swimming pool and hundreds of families who used the Comanche Springs runoff to irrigate their small farms became destitute. The most recent notorious example of the stupidity and wastefulness of the RoC is the catfish farmer who was pumping 25% of the flow of the Edwards Aquifer–the aquifer that supplies water to Austin, San Antonio, and many other cities–in which to grown his fat catfish. The cities were forced to pay this guy about $25 million to buy his water rights and protect the water supply for millions of their citizens.

    Today, climate change and regional warming in the American Southwest, including West Texas, have created drought conditions that climatologists predict will become permanent. According to these scientists, aquifer recharge won’t regain its historic levels in this region. With accelerated pumping and much less recharge, Texas aquifers (the ones in West and Central Texas) are now in danger of quickly being permanently drained. Even today many aquifers are so low that the water in them has become dangerously salty. Water tables have dropped so much that wells have had to be deepened. So common use of a limited resource has led to the depletion of that resource to the detriment of all.

    Error #2: I described above how Texas law does not conform to scientific, natural, and empirical reality. I think the adjective “perverse” applies rather well to this situation. It follows that court decisions made in conformance to the law rather than to objective reality are perverse. IF the law were changed to conform to reality, court decisions would no longer be perverse.

    I am quite aware of the 5th Amendment, which mandates that private property cannot be taken for public use without just compensation. This part of the amendment has a long and complex legal history which I won’t get into here. However, governments are allowed to take private property if just compensation is provided. The questions usually involve what constitutes “just compensation” but also what is “private property.” icdelight’s argument is that the Braggs deserved (and received, by the Texas Supreme Court’s–in my opinion–perverse, illogical, and greatly destructive decision) to be fairly compensated for their appropriated (“taken”) private property. icdelight’s premise is that the Braggs owned the groundwater, which is obviously what the court believed to reach their decision, since private ownership of groundwater is implicit in the RoC.

    My point, however, is that it is actually impossible for any person to “own” groundwater. What the Braggs owned, and what every other property owner truly owns, is the right to extract the groundwater, not the right to own it. I clearly explained that in the real world groundwater is a common and is owned by society in common; it is not and cannot be owned by private individuals since this flies in the face of objective, natural, empirical, and scientific reality (groundwater flows beneath the property of many so no single person can own it; one person’s pumping of groundwater will lower the water table in the wells of others; if groundwater is in limited supply other surface owners suffer if a single owner takes most or all of it, etc.; the fact is that there are no subsurface property boundaries in the aquifer as there are on the surface). I explained that the law, the RoC, holds the opposite belief that is not based in reality: that groundwater is private property in the same way that surface land is private property. As long as we have the RoC, court decisions regarding groundwater extraction will continue to be wrongly decided to the detriment of the public good.

    Now here’s the key point: IF the RoC were abandoned, surface owner’s rights would be scientifically, objectively, and correctly judged by their right to extract groundwater, which is the correct method. Texas law does make the distinction between ownership of and right to extract groundwater, but the RoC makes the application of this distinction difficult. As long as groundwater is plentiful and there is enough for all, property owners should be allowed to take as much as they want for their private use. But if–as is the case now and will now be forever due to permanent regional warming–groundwater is limited, then private extraction should be regulated by a government authority and pumping limited. If this became the case by abandoning the RoC, there would be no “taking” under the 5th Amendment. Texas law explicitly permits appropriation of private water rights for the common good (public use). Without the RoC, there would be little or no compensation, for in that situation so little could be extracted under permissible regulation that the right is worth little. Simply reducing the permissible extraction amount would solve most allocation problems, so no appropriation or taking is necessary. I earlier made the point that without conservation of groundwater by abandoning the RoC and instituting government regulation by a combination of state agency and local groundwater conservation districts, soon the amount of fresh groundwater available to any single person or to society will be little to nothing. This is the result when the law fails to conform to reality and state courts issue irrational decisions that make conditions worse.

    So, the Texas Constitution says that, “no person’s property shall be taken, damaged or destroy for or applied to public use without adequate compensation being made.” Groundwater is a common, so today it is not any person’s property by any natural or scientific reasoning, and if the RoC can be removed from statute either by legislative action or by court decision, it would also not be any person’s property by legal reasoning. In either case, no compensation is necessary or needed since no person’s property would be taken for public use if extraction was regulated.

    Error #3: Since groundwater is “owned by the property owners” only by an irrational and reckless law, it makes sense to change the law to something realistic and sensible that creates a sustainable supply of groundwater (even that is probably no longer possible today). The irrational and reckless law is a state law and, as you know, federal law trumps state law. I listed several examples of ways current federal law could be used to legally overturn the RoC and stop the dangerous and misguided over-pumping of groundwater for large-scale irrigated monoculture in Texas. I’m sure environmental attorneys have already thought of these possibilities. I believe all have been tried in other states. Why haven’t they been attempted in Texas?

    It is clear that Texas still has the RoC only because a small group of politically-powerful large land holders want to keep the law so they can profit by their access to groundwater. They would be happy to give ordinary citizens greater supplies of fresh water . . . for a price, a high price since the large land holders have something of a monopoly due to the RoC. And what is the “alleged public use”? To provide sufficient freshwater to increasing numbers of Texas citizens so they can survive. That is a very important public use and not one “alleged” at all. Texas has already witnessed massive shortages of groundwater in some localities and a decrease in water quality in many other areas as aquifers have drained and become more saline. This situation is only going to intensify and become worse.

  • Pearl

    ground water districts need to go away. they operate by in large with little or no state oversight, and are free to make up their own rules as they go. Some are in the business of corporate shakedowns for money. They ignore the TCEQ. They were a bad idea to begin with. Thanks for nothing Todd Staples.