Water Law Amounted To Regulatory Taking By Limiting Permitted Water Withdrawals To Amount Insufficient To Water Pecan Orchard.

The Texas Court of Appeals held that the enactment and implementation of the Edwards Aquifer Act substantially advanced a legitimate governmental interest and did not deprive the defendants of all economically viable use of their property.  However, the Act did unreasonably impede the defendant's use of the farm as a pecan orchard because the irrigation permit approved withdrawal of water for irrigation at less than a sufficient amount which constituted a regulatory taking, and outright denial of second permit on separate tract also constituted a regulatory taking.  The trial court had awarded compensation on the tract where the permit was denied (tract 1) in the amount of $134,918.40 based on the difference in value of a dry land farm in the county and a comparable irrigated farm.  The compensation for a regulatory taking on the tract where a permit was authorized for water withdrawals in an insufficient quantity (tract 2) was determined to be $597,575 based on the market value per acre-foot of water denied.   On appeal, the appellate court affirmed the trial court finding that implementation of the Act resulted in a regulatory taking, but reversed the trial court on the computation of compensation owed the defendants.  The appellate court determined that compensation on tract 1 was to be computed as the difference between the value of the land as a commercial-grade pecan orchard with unlimited access to the Edwards Aquifer water immediately before implementation of the Act and the value of the land as a commercial-grade pecan orchard without access to Edwards Aquifer water immediately after implementation of the Act.   Compensation for tract 2 was to be determined as the difference between the value of the land as a commercial-grade pecan orchard with unlimited access to Edwards Aquifer water immediately before implementation of the Act and the value of the land as a commercial-grade pecan orchard with access to Edwards Aquifer water limited to 120.2 acre-feet of water immediately after the Act was implemented.  The Texas Supreme Court declined to review the case.  The Edwards Aquifer Authority v. Bragg, 421 S.W.3d 118 (Tex. Ct. App. 2013), pet. for rev. den., No. 13-023, 2015 Tex. LEXIS 400 (Tex. Sup. Ct. May 1, 2015).

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