Come and Take It

Court Ruling Dares Regulators to Limit Water Pumping.

In a lawsuit decided last week the Circuit court ruled that

the Edwards Aquifer Authority owes landowners money for “taking” their groundwater by limiting pumping.

The EAA limits pumping from the aquifer because we’re in a drought, and we want the water to last.  When Texas groundwater laws were written scientists did not know that the water underground could flow like a river.  River water is controlled by different laws.

The Fourth Circuit Court relied on a Texas Supreme Court ruling a year ago.  In that ruling

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.

Now it looks like underground water authorities will have to pay if they limit pumping.  But where will they get that kind of money?  How long will it take to pump the aquifers dry?  Not long, if everybody gets to pump out all the water they can.

Robin Kundis Craig, a law prof at the University of Utah, puts it aptly:  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.

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