The QueQue: Tower of Hope's whistleblower alleges school refused protections, Wentworth files defamation suit
Published: May 23, 2012
Russell Johnson, an Austin-based water law attorney, called the court decision a victory for landowners, saying Day has "swung the pendulum back to the middle" to strike the proper balance between water management and individual property rights. Johnson's worry was over property rights shunned by groundwater conservation districts "in a zeal to protect the resource."
Over a decade ago, Von Ormy growers Burrell Day and Joel McDaniel sued the EAA when the district sought to limit the amount of water they could pump. The case has now been remanded back to the district court to decide whether the EAA must pay a penalty. And the Day ruling is likely to influence another EAA fight winding through the state's Fourth Court of Appeals, Ellis said. In the case, Edwards Aquifer Authority v. Bragg, the EAA kept a Medina County couple from pumping as much water as they wanted to irrigate two pecan orchards. Ruling against the EAA in 2010, outgoing District Judge Thomas Lee awarded the couple $867,000 for their loss, saying the EAA's regulation severely devalued their investment. The court has yet to hear oral arguments on the EAA's appeal.
Tom Mason, a water attorney and former general manager of the Lower Colorado River Authority, called Texas' current regulatory structure "a legal fiction" that arbitrarily separates surface water rights (which the state controls) from groundwater resources, even though, as he put it, "Hydrologists the world over will tell you the earth has a closed-loop hydrologic system."
While Mason said the Day case is unlikely to cause a deluge of litigation against Texas groundwater conservation districts, he remarked, "I see something a bit more insidious, and it won't be nearly as apparent as a flood of lawsuits.
"I think many groundwater districts will be less inclined to be aggressive in limiting permits and withdrawals out of fear of litigation," Mason said. "I think it's going to affect their decision making, whether they acknowledge it or not." •