The Edwards Aquifer Authority (EAA), perhaps unintentionally, has made a major contribution to the legal
recognition of property owners’ rights in groundwater. Decisions in two cases are responsible.
In Edwards Aquifer Authority v. Day, the EAA gutted a landowner’s claim for recognition of a historic use permit.
When the landowner appealed, claiming that EAA’s denial was a taking of his rights, EAA argued that he didn’t
actually own the water beneath his property, only the right to capture it.
The case went to the Texas Supreme Court in 2012 and EAA’s arguments regarding ownership rights of
groundwater were flatly rejected. Instead, the Texas Supreme Court ruled that ownership of groundwater was
comparable to ownership of oil and gas and other minerals.
In the Day case, the EAA paid over $800,000 in legal fees to get a decision that ultimately affirmed an owner’s
property rights in groundwater and provided a road map for how to assert a claim that your groundwater rights have
been taken. EAA and Day settled the case after the Supreme Court’s decision. Rumor has it that this cost EAA
almost another million dollars.
In another decision this year, Bragg v. EAA, the authority was being sued by a pecan farmer who was run out of
business by EAA’s decision to cut back his historic water usage. EAA lost in the trial court and on appeals, and tried
to take it to the Texas Supreme Court, which passed on the case, letting the lower ruling stand. In this case, EAA
paid over $1.5 million in attorney’s fees and ultimately paid damages of $4.5 million.
The Brazos Valley Groundwater Rights Association believes that we should all thank EAA for its $8 million
contribution to making good law for owners of Texas groundwater rights. Its efforts have confirmed what
landowners and their lawyers have always believed to be the case: that the landowner owns the groundwater beneath
his property and that the groundwater conservation district that takes it from him has to pay for it.