Jeff Civins in Law360: Texas Water Permit Fight May Foster More Takings Claims


A Texas appeals court on Wednesday found that a groundwater district’s denial of water permits to a South Texas farm qualifies as a regulatory taking, in a ruling experts say gives teeth to the Texas Supreme Court’s key 2012 decision affirming property rights in groundwater.

The San Antonio Court of Appeals found the Edwards Aquifer Authority must compensate the owner of a pecan orchard after the groundwater district denied and limited his permit requests to access groundwater from the aquifer, but reversed the trial court’s damages calculation and ordered it to collect more evidence about the value of the water rights...

The stream of litigation and potential that groundwater districts must foot the cost of those takings claims will put a great deal of pressure on water managers, said Jeff Civins of Haynes and Boone, LLP. Civins said although the appellate court determined that the groundwater district and the state share liability for the takings claim, the state should step in and help, because the water management districts already have limited budgets and resources.

“It’s not a regional issue, it’s a statewide issue and it should be dealt with on statewide basis,” Civins said. “The practical impact going forward of the authority making these decisions and then facing litigation anytime somebody gets less than they think they’re entitled to is only going to be exaggerated because we now have less water to go around.

Excerpted from Law360, August 29, 2013. To view full article, click here (subscription required).


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