Ongoing water legal battles around the state and nation could set precedents that affect all landowners, so they bear watching, according to Tiffany Dowell Lashmet, Texas A&M AgriLife Extension Service agricultural law specialist in Amarillo.
Dowell Lashmet, speaking at the recent High Plains Irrigation Conference, outlined several legal actions concerning the Clean Water Act and corresponding definitions of Waters of the U.S., or WOTUS.
The Clean Water Act is a federal law that gives the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jurisdiction over the “waters of the U.S.” But there is no definition in the Clean Water Act of what constitutes a WOTUS, she said.
A new rule passed by EPA and the Corps of Engineers attempted to clarify the definition of WOTUS, but numerous lawsuits were filed alleging the new definition actually broadened, rather than clarified, the term.
Currently, there is a nationwide stay on the rule pending litigation, Dowell Lashmet said. Now, the case will be going before the U.S. Supreme Court for a jurisdictional challenge to decide which court will hear arguments, and then the legal battle likely will proceed to federal court at some level.
However, she said, something that could render all of the court proceedings unnecessary is what is going on in Washington – the Trump administration has indicated it will work to eliminate the new WOTUS rule.
“But we still have to worry about the Clean Water Act and the interpretation of ‘waters of the United States,'” Dowell Lashmet said.
Currently, a Clean Water Act case in California causing concern for agricultural producers involves a farmer who purchased grassland and plowed it up to plant wheat. The Corps of Engineers took the position that because the field had vernal swells, or low spots that fill with water when it rains and these were hydrologically connected to a river 8 miles away, they were a WOTUS. The farmer was told a federal permit was needed to plow his property.
The trial court sided with the government, finding the field did contain waters of the U.S., and an ongoing farming exemption from the Clean Water Act did not apply, so the landowner was required to obtain a federal permit. The case is now on appeal at the 9th Circuit Court.
“A lot of attorneys are concerned about the precedent this could set,” Dowell Lashmet said. “It is this type of broad interpretation of what constitutes a WOTUS and narrow construction of statutory exemptions from the rule that cause landowners concern over the EPA’s new definition.”
In Texas, the ongoing Bragg vs. Edwards Aquifer Authority resulted in the first-ever “takings” verdict when a permit to pump groundwater was denied, she said.
Dowell Lashmet provided a brief background: A farmer planted pecan orchards on a property overlaying the Edwards Aquifer before there was an entity to monitor groundwater pumping. One orchard was irrigated with water from the Edwards Aquifer and the rest another shallower aquifer.
Then the Edwards Aquifer Authority, created in 1993, began requiring landowners to obtain a permit in order to pump water from the aquifer.
Bragg filed the permit application for both of his orchards, but the Edwards Aquifer Authority denied his request in part for one orchard and entirely for the other. So Bragg filed a lawsuit, saying the denial was a taking of his private property because landowners own the water beneath their land.
“When the government takes your private property, they have to pay you just compensation – that was his premise,” Dowell Lashmet said. “The trial court and the San Antonio Court of Appeals sided with Bragg. The case was appealed to the Texas Supreme Court, but they denied hearing it. That meant the Court of Appeals ruling stood – there was a taking and he was due just compensation, which the jury found to be $2.5 million.”
She said the Edwards Aquifer Authority has announced it will not appeal this decision.
Although in this case, the landowner successfully challenged the denial of a permit to pump groundwater and a taking did occur, Dowell Lashmet warned that these cases are extremely fact-specific and difficult to win.
“Certainly, not every denial by an entity of a groundwater pumping permit will constitute a taking,” she said. “But this case shows that, under the right facts and with the right jury, a taking can occur and a landowner can be owed just compensation.”
Another case, the City of Lubbock vs. Coyote Lake Ranch near Muleshoe, involves groundwater rights sold in 1953 to Lubbock. The city owned the right to come onto the land to search and drill for water, and in 2012, they proposed drilling 60 wells on the property..
The new landowner argued that although Lubbock owned the groundwater and had the right to drill wells, he was protected by the accommodation doctrine and should have some say in where those wells could be drilled and how other items like power lines needed for water well use would be constructed.
This doctrine had only been applied with regard to mineral rights where the mineral estate is considered dominant, Dowell Lashmet said. The mineral owner has the right to use as much of the surface as is reasonably necessary to produce the minerals.
But, the accommodation doctrine requires them to do what they can to accommodate existing surface uses if the landowner can prove three factors: substantial impact on surface use, the mineral can be produced another way and the surface use cannot be made another way.
The Coyote Lake landowner argued that Lubbock could still drill their water wells, but should do so in a way that accommodates the existing surface use of the ranch – running cattle – in doing so.
The Amarillo Court of Appeals said there was no accommodation doctrine for groundwater rights. The landowner appealed to the Texas Supreme Court, which issued an important ruling. First, they found the groundwater estate is dominant, like a mineral estate. Second, they found the accommodation doctrine can apply to a groundwater owner, if the three accommodation factors can be proven by the landowner.
Now the case will go back to the trial court to determine if the landowner can meet these three required factors in order for the doctrine to apply in this case and offer some protection to the landowners.
“That’s important to keep in mind if you are buying property that has groundwater rights severed,” Dowell Lashmet said.
“This is a big deal for property owners,” she said. “Groundwater owners have the implied right to use the surface of the land as much as is reasonably necessary to produce groundwater now.”