groundwater case law, court decisions, affirmation of … symposium/2015... · 2015-11-20 · mike...
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Groundwater Case Law, Court Decisions, Affirmation of Groundwater
Mike GershonLloyd Gosselink, P.C.
Austin, Texas
15th Annual Bell County Water SymposiumShowcasing Groundwater Management,
Science & Education
Rule of Capture
a common law doctrine adopted by courts
Texas Supreme Court chambers
1904 - adopted in Houston Tex. C. Railroad v. East
1998 - criticized in Sipriano v. Ozarka
2012 - qualified in Day/McDaniel v. EAA
Rule of Capture is “Law of the Biggest Pump”
No remedy if neighbor pumps you dry
Houston Texas Central Railroad Co. v. East
1904
Rule of Capture
1904 All states follow it except New Hampshire.
Rule of Capture
1904 All states follow it except New Hampshire.
1939 11 states follow it.
Rule of Capture
1904 All states follow it except New Hampshire.
1939 11 states follow it.
1960 3 states follow it.
Rule of Capture
1904 All states follow it except New Hampshire.
1939 11 states follow it.
1960 3 states follow it.
1999 Only in Texas.
Rule of Capture
1904 All states follow it except New Hampshire.
1939 11 states follow it.
1960 3 states follow it.
1999 Only in Texas.
2012 Texas qualifies it.
Rule of CaptureWhy it made sense…
East (1904):
(1) “Hopeless uncertainty” and “practically impossible” to regulate a “secret, occult, and concealed” resource
(2)Would impede economic development to award $ damages
Ozarka (1999):
“Neither [reason] remains valid.”
“[I]t is not regulation that threatens progress, but the lack of it.”
Day (2012):
Under the Rule of Capture, “legislators had inadequately provided for the protection of groundwater supplies.”
Day/McDaniel v. Edwards Aquifer Authority
February 2012
“Ownership in Place” Doctrine
(2012)Rule of Capture
Preferred Method of
Groundwater Management by Districts
““Groundwater management should be based on sound science and public input at the local level, not on one-size-fits-all state mandates.”
Governor Abbott (2015)
Senate Bill 4/House Bill 4(2013) 4
CONTEXT Senate Bill 3(2007) 3
Senate Bill 2(2001) 2
Senate Bill 1(1997) 1
Fort Stockton Holdings, L.P. v. Middle Pecos Groundwater
Conservation District
November 16, 2015
HELD: District was reasonable and justified in denying application for 15.5 billion gallons (47,418 ac-ft) per year for new export use because it was tied to irrigation-based historic use permit and would impair District’s ability to manage
Coyote Lake Ranch v. City of Lubbock
October 15, 2015oral argument at TX S.Ct.
HELD: “We do not read Dayto support an extension of the accommodation doctrineto the groundwater context…[T]he considerations shaping the regulatory schemes differ markedly.”
- Amarillo Ct. of Appeals
Does oil and gas law apply to groundwater?
Bragg v. Edwards Aquifer Authority
Summer 2015
HELD: Yes, EAA is liable. Remanded to trial court to determine the value that the whole property was impaired at the time of taking (when EAA made its decision)
No Challenge to EAA’s decision.Sole question is takings liability ($$)
Texas Supreme Court’s Commentary on Takings
(in Day v. EAA)
“The requirement of compensation may make the regulatory scheme more expensive, but it does not affect the regulations themselves or their goals for groundwater production.”
“The Legislature can discharge its responsibility under the Conservation Amendment without triggering the Takings Clause. But the Takings Clause ensures that the problems of a limited public resource – the water supply –are shared by the public, not foisted onto a few.”
G.G. Ranch v. Edwards Aquifer Authority
June 2, 2015
HELD: Basis for EAA’s decision justified. “Water management and conservation are uniquely compelling state interests, and failure to protect water supplies could be catastrophic for the economic health of the State of Texas and the welfare of its residents.”
Texas Constitution – Conservation AmendmentArticle XVI, § 59
“[T]he preservation and conservation of all such naturalresources of the State are each and all hereby declared publicrights and duties; and the Legislature shall pass all such lawsas may be appropriate thereto.”
Tex. Water Code § 36.0015 (“Purpose”)
Groundwater conservation districts created as provided by thischapter are the state’s preferred method of groundwatermanagement in order to protect property rights, balance theconservation and development of groundwater to meet theneeds of this state, and use the best available science in theconservation and development of groundwater.
Groundwater Case Law, Court Decisions, Affirmation of Groundwater
Mike GershonLloyd Gosselink, P.C.
816 Congress Avenue, Suite 1900Austin, Texas 78701
15th Annual Bell County Water SymposiumShowcasing Groundwater Management,
Science & Education