SAN ANTONIO -- Judge Mickey R. Pennington has recently ruled in favor of Glenn and JoLynn Bragg of Hondo, Texas in their suit against the Edwards Aquifer Authority (EAA). Judge Pennington found the EAA's well permitting rules void because the authority failed to prepare a Takings Impact Assessment as required by the Texas Private Real Property Rights Preservation Act.
The Braggs have farmed pecans in Medina County for the past 20 years and irrigated their pecan orchards from Edwards Aquifer wells. Under the EAA's permitting rules, well owners were required to apply for permits to continue pumping water from the aquifer. Although both of the Braggs' wells were drilled before the EAA came into existence, the authority had recommended a complete denial of the permit for one well and a partial denial of the other. If allowed to stand, the EAA's denial of the Braggs' pumping rights would have put the Braggs out of business.
Judge Pennington ruled the Edwards Aquifer Authority did not follow the requirements of the Property Rights Preservation Act. The Property Rights Preservation Act requires governmental entities, like the EAA, to consider the effects their actions will have on property owners. The EAA failed to do so when adopting their well permitting rules, the judge ruled.
The EAA argued that the Property Rights Act did not apply to their actions and that landowners in Texas have no property rights in water underneath the land. Judge Pennington rejected the authority's arguments.
The Court's ruling in this case reaffirms the longstanding law in Texas that the landowner owns valuable property rights in the water underneath the land.
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