February 4, 2023

Volume XIII, Number 35

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February 03, 2023

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February 02, 2023

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Texas Fourth Court Of Appeals Finds Compensable Regulatory Taking Of Groundwater In Edwards Aquifer Authority v. Bragg

On August 28, 2013, the Texas Fourth Court of Appeals held that groundwater permit restrictions imposed by the Edwards Aquifer Authority (the "Authority") on landowners constituted a regulatory taking. The landowners, Glenn and JoLynn Bragg, were commercial pecan growers who brought suit against the Authority after they were denied a water permit for one of their pecan orchards, and granted a limited permit for another orchard.

Applying the Texas Supreme Court’s recent opinion in Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), the Court of Appeals observed that landowners have absolute title to the water in place beneath their lands. To reach its conclusion that a taking had occurred, the Court weighed factors set forth by the U.S. Supreme Court for assessing regulatory takings in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978): the economic impact on the Braggs caused by the groundwater regulations, the groundwater regulations’ interference with the Braggs’ investment-backed expectations, and the nature of regulation in general. The Court went on to determine that the proper compensation for the taking was the difference in the value of the Braggs’ land before and after the groundwater restrictions were applied to the orchards. The case was remanded to the trial court for a calculation of the damages. A copy of the court’s opinion is available here.

© 2023 Beveridge & Diamond PC National Law Review, Volume III, Number 273
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About this Author

Beveridge & Diamond, P.C. brings a blend of long years of experience, the perspective of former senior government officials, and a depth of knowledge of federal and state laws and regulations to all of its environmental work. Our clients demand that we provide the highest quality of environmental representation to solve their environmental problems worldwide. We continue to meet that challenge today, as we have for over 30 years.

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