Edwards Aquifer Authority v. Day and the Future of Groundwater Regulation in Texas by ProQuest

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"7 In addition, a landowner who uses water exclusively for domestic purposes or for livestock watering is not required to file a declaration of historical use.8 In Barshop v. Medina County Underground Water Conservation District, the EAA Act was challenged as an unconstitutional taking of property rights without compensation,9 but the Supreme Court of Texas upheld the Act.10 Unfortunately, the court in Barshop did not address the underlying question of the nature and extent of a landowner's vested property right in groundwater.11 Instead, the court simply assumed without deciding that "[landowners] possess a vested property right in the water beneath their land, [but] the State can still take the property for a public use as long as adequate compensation is provided. More specifically, it declined to say whether the actual denial of a permit could be a regulatory taking or could be justified as a valid exercise of the police power not requiring landowner compensation.13 B. Edwards Aquifer Authority v. Day The question left unanswered by the court in Barshop has made its way back up to the Supreme Court of Texas in another case stemming from groundwater regulation under the EAA Act.14 Whereas Barshop was a facial challenge to the EAA Act,15 Edwards Aquifer Authority v. Day is a challenge to the Act as applied in a specific permitting scenario.16 As such, Day squarely presents the question of the extent of a landowner's property right to groundwater in place,17 and the court needs to address the issue head-on so that water planning in the state of Texas can confidently advance to meet future water needs. 1.

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