Farm/Ranch
TSCRA applauds Supreme Court judgment in groundwater case
By Texas and Southwestern Cattle Raisers Association
May 31, 2008

FORT WORTH, Texas, May 30, 2008—Texas and Southwestern Cattle Raisers Association applauds the judgment issued today by the Texas Supreme Court in the Hudspeth County groundwater case, ruling in favor of Guitar Holding Company, L.P. and reversing two lower courts’ judgments that upheld the conservation district’s rules.

TSCRA President Jon Means of Van Horn said, “We are pleased with the judgment today by the Texas Supreme Court.  It is a victory for Texas ranchers.”  TSCRA filed an amicus curiae brief in the case in support of the position held by Guitar Holding Company, L.P.   

The issue in this challenge stemmed from El Paso's effort to buy and transfer water from nearby Hudspeth County, and whether the conservation district's transfer rules violate state law prohibiting more restrictive conditions on out-of-district transfer applications.

As part of its aquifer-conservation plan, the Hudspeth County district imposed restrictions on transferring water based on historical water use. That means in this case, Guitar, which had not used as much water in the past as other landowners, could not transfer as much water as landowners who had a greater historical use.  Guitar argued that those restrictions violate provisions of Senate Bill 2, a comprehensive groundwater law enacted in 2001.

The trial court held the conservation district's rules valid, and an appeals court affirmed.  However, the Supreme Court held that the conservation district's more restrictive transfer conditions on new users violate state water law because transfer permit applications are considered a new use for the water.

The Supreme Court said, “In 2005, the Legislature added a new definition for “evidence of historic or existing use,” which it defined as “evidence that is material and relevant to a determination of the amount of groundwater beneficially used” during the relevant time period.  The chapter already defined “use for a beneficial purpose” with a list of specific purposes and “any other purpose that is useful and beneficial to the user.”  Read together, these definitions indicate that the amount of groundwater withdrawn and its purpose are both relevant when identifying an existing or historic use to be preserved. Indeed, in the context of regulating the production of groundwater while preserving an existing use, it is difficult to reconcile how the two might be separated.”

The Supreme Court also said, “Although there is existing irrigation use in the district, the transfer rules do not protect that existing use. Instead, the transfer rules permit in-district irrigators to convert their protected existing use to an entirely new use, that is, to transfer it out of the district for municipal and industrial purposes. Once the groundwater allocated for existing irrigation use is transferred outside the district, however, the protected existing use ends, as does the justification for protecting that use. Rather than protect historic or existing use then, the District’s transfer rules, in essence, grant franchises to some landowners to export water while denying that right to others. Because the limitations are not uniformly applied to these new applications and are not necessary to protect existing use, the District’s transfer rules exceed the statutory authorization and are thus invalid.” 

The Supreme Court’s judgment, therefore, invalidates the conservation district’s rules and finds in favor of Guitar Holding Company, L.P.

To read the entire argument and resulting Supreme Court opinion on this case, click on the following link to go to the Web site for the Texas Supreme Court:. http://www.supreme.courts.state.tx.us/historical/2008/may/060904.htm

Texas and Southwestern Cattle Raisers Association is a 131-year-old trade organization whose 15,000 members manage approximately 4 million head of cattle on 51.5 million acres of range and pasture land, primarily in Texas and Oklahoma.  TSCRA provides law enforcement services, livestock inspection, legislative and regulatory advocacy and education opportunities for its members.