Jump to Navigation
Jump to Content

Edwards Aquifer Authority v. Bragg

ELR Citation: 43 ELR 20202
Nos. 04-11-00018-CV, (Tex. Ct. App., 08/28/2013)

A Texas appellate court affirmed a lower court decision that commercial pecan growers suffered a regulatory taking when the Edwards Aquifer Authority—a water reclamation district—denied the growers' request for a water permit for one of their pecan orchards and granted a limited permit for a second pecan orchard, but reversed the amount awarded to them in compensation. The Edwards Aquifer Act empowers the Authority to regulate groundwater withdrawals from the aquifer through a permit system that gives preference to existing users—people who have withdrawn and beneficially used underground water from the aquifer on or before June 1, 1993. Here, the authority denied one permit and partially denied the second permit based on the growers' historical use of the aquifer. The record supports the lower court's conclusion that the permitting system imposed under the Act resulted in a regulatory taking of both pecan orchards. But the lower court incorrectly determined compensation by calculating the difference between the market value at the time of trial of the permit rights the growers requested in their application and the permitted rights actually received. On remand, the lower court must calculate the compensation owed on the orchards as the difference between the value of the land as a commercial-grade pecan orchard with unlimited access to Edwards Aquifer water immediately before implementation of the Act and the value of the land as a commercial-grade pecan orchard with no access or limited access to Edwards Aquifer immediately after implementation of the Act.