Jeff Civins, “Texas Water Permit Fight May Foster More Takings Claims” (Law 360)

On August 28, 2013, a San Antonio appellate court issued the first major opinion involving groundwater takings under the new water rights doctrine the Texas Supreme Court established under its 2012 opinion, Edwards Aquifer Authority v. Day.

The appellate court found that the Edwards Aquifer Authority had committed a regulatory taking when it limited the amount of groundwater a pecan orchard could withdraw.  The decision has attracted considerable interest in the Texas water law community and could open the doors for many more takings claims.

In an August 29 article, Law 360 quoted Jeff Civins — a partner in the Austin office of Haynes and Boone, an Energy Center board member, and a UT Law adjunct — on the potential implications.

“The stream of litigation and potential that groundwater districts must foot the cost of those takings claims will put a great deal of pressure on water managers, said Jeff Civins of Haynes & Boone LLP. Civins said although the appellate court determined that the groundwater district and the state share liability for the takings claim, the state should step in and help, because the water management districts already have limited budgets and resources.

“’It’s not a regional issue, it’s a statewide issue and it should be dealt with on statewide basis,’” Civins said. ‘The practical impact going forward of the authority making these decisions and then facing litigation anytime somebody gets less than they think they’re entitled to is only going to be exaggerated because we now have less water to go around.’”