YOU NEVER MISS YOUR WATER UNTIL YOUR WELL PERMIT IS DENIED

By PEPPER BOWEN

Back in 1979 and 1983, Glenn and Jolynn Bragg bought pecan orchards for commercial production. The location was perfect - just north of Hondo, TX, in Medina County atop the Edwards Aquifer, one of the most prolific artesian aquifers and one of the greatest natural resources in the world. The Aquifer is a unique groundwater system that has supported the growth and prosperity of the surrounding region for over a century without the development of surface or other water resources because it discharges about 900,000 acre feet of water per year (that’s a lot). This volume allows it to serve the agricultural, industrial, recreational, and domestic needs of over 2M South Central Texans. To the Braggs, the Edwards Aquifer was simply the groundwater system that maintained their pecan groves in a semi-arid climate.

Initially the Braggs used the land’s old drip irrigation system from a well that provided insufficient water. They planned shortly after the 1983 purchase to dig an Edwards Aquifer well capable of dispensing more water to irrigate the crops. This irrigation system would be very important to their commercial investment because pecans are a somewhat water intensive and salt sensitive nut crop requiring 2" of rain or irrigation water per week. Still, the Braggs had a dedicated water source so they were unconcerned about the volume needed … that is until the Edwards Aquifer Authority (EAA) was created in 1995. The EAA established a permit allocation which was incongruent with the Braggs’ needs and that sparked a 20 year battle over the water resources that the Braggs have characterized as the unconstitutional taking of their water source.

EAA’s authority stems from the namesake Act passed by the Texas Legislature in 1993. The Act gives all powers, rights, and privileges to manage, conserve, preserve, and protect the aquifer to the EAA. This is accomplished largely by creating a process oriented system of meters and permits which manage water usage.

The Braggs applied for two permits to support their well, which was not completed until after the Act went into force. They were approved for volume less than requested for one and completely denied the other. As the result, the Braggs claim that by not granting the volume requested, the EAA adversely impacts their pecan business in what amounts to a taking of resources necessary for the commercial viability of their business.

Court documents beginning in 2007 cite the seminal case of Penn Central Transportation v New York (1978) which provides in pertinent part that except where a regulation physically invades a property, as in for public access, the test is whether the regulation unreasonably “interfered with distinct investment-backed expectations.” Under Penn the primary factors to be considered are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.”

The Braggs argued their orchards had been adversely impacted. The Authority countered with arguments including the Braggs benefited from the Aquifer and the permit system if for no other reason apportioned the volume and ensured they and others could continue to rely upon the Aquifer for years to come.

Ultimately, the Texas Court of Appeals concluded the permitting system resulted in a regulatory taking of both orchards based largely on application of the Penn factors. The Braggs believed they owned the water under their land. They had a reasonable expectation through their investment that they could support the orchards with water from wells from the Aquifer. And what may have been most compelling, lack of sufficient water for the crops not only impacts yields of the current crop, but also the quality and size of future crops. Damages were awarded; neither party was appeased; both appealed to the Texas Supreme Court; both were denied writ.