Recent Texas Court Decisions Impacting Groundwater Rights -- An Impetus for Legislative Amendments to Texas Water Code Chapter 36

In the last two years, several judicial decisions were handed down that impacted Chapter 36 of the Texas Water Code, and general permitting of groundwater rights in Texas. Through these decisions, some of which are still in pending in appellate courts, trial and appeals courts have recently made more modifications to Chapter 36 than have been made since its inception. Consequently, these decisions may lead to legislative action during the 81st Texas Legislature. These cases include:

• Edwards Aquifer Authority (EAA) v. Day, which required the EAA to undertake a takings analysis because it granted a groundwater production permit allowing production of only a portion of the total amount requested by the landowners/applicants

• City of Del Rio v. Clayton Sam Colt Hamilton Trust, which holds that landowners have some ownership interest in groundwater in place beneath the surface of their property

• Guitar Holding Co., LP v. Hudspeth County Underground Water Conservation District No. 1, relating to the ability of a GCD to issue production permits based upon historic use and to authorize the transport of water produced pursuant to such a production permit

• City of Aspermont v. Rolling Plains GCD, relating to the ability of a politicalsubdivision to rely upon governmental immunity as a shield against GCD enforcement efforts.

It will be interesting to see whether Texas lawmakers simply legislate around these decisions, or whether they will be bolstered by new amendments to Chapter 36 of the Texas Water Code.