Edwards Aquifer Authority v. Bragg

The Edwards Aquifer (aquifer) was an important water source underlying much of Texas. Traditionally, Texas was a rule-of-capture state such that each landowner had an unlimited right to take water from wells on his property but no right to limit the water taken by other landowners from their wells. Also, Texas landowners had absolute title to the water beneath their land, subject to police power and the rights of other landowners to draw water. The amount of water in the aquifer became insufficient to satisfy demand. Texas created the Edwards Aquifer Authority (authority) (defendant) to regulate use of the aquifer according to a permit system. The amount of water authorized for use by each permit was determined by the applicant’s past use. Before the creation of the authority, Glenn and JoLynn Bragg (plaintiffs) planted pecan trees on two parcels of land over the aquifer. Glenn had a degree in agricultural economics and an extensive understanding of pecan crops. While the trees were young, they needed little water, and the Braggs relied mainly on surface water. The Braggs planned to draw more water from the aquifer when the trees were older. After the authority was created, the Braggs applied for a permit to draw water from the aquifer. The application was denied. The Braggs had to reduce the number of trees on their land and cut limbs off the trees to reduce their size. To raise a commercially viable crop, the Braggs had to pay $3,500–$6,000 annually for additional water. The Braggs’ irrigation costs increased about 10 percent. The Braggs sued the authority, arguing that its regulations amounted to a regulatory taking under the United States Supreme Court’s ruling in Penn Central Transportation Co. v. New York City. The trial court ruled in the Braggs’ favor, and the authority appealed.