Name partner Stephan Rogers previously represented the Edwards Underground Water District and played a key role in establishing its successor, the Edwards Aquifer Authority, which regulates pumping from the Edwards Aquifer in Bexar County (San Antonio) and 10 other Texas counties. In addition to helping the organization get off the ground, he also drafted the first version of rules implementing the Edwards Aquifer Authority Act.
Texas Water Law
Texas law treats groundwater and surface water very differently. In general, surface water in lakes and streams belongs to the state of Texas, and the state can grant permits to divert and use surface water for various beneficial purposes.
In contrast, groundwater — defined as water “percolating below the surface of the earth” or flowing in an underground aquifer — belongs to the owner of the land. Under the Rule of Capture, a landowner can pump groundwater for any beneficial purpose, subject to regulation of the rate of pumping and prohibition against the willful waste of groundwater.
The state can even cap overall withdrawals from an aquifer, and deny pumping to new users, where demand exceeds supply (Edwards Aquifer) or to control subsidence (Houston area).
Texas maintains 98 local Groundwater Conservation Districts, which set rules and regulations that cover permitting, metering and setting limits on the amount of groundwater that can be withdrawn. There are also 16 Groundwater Management Areas that coordinate with water districts to provide regional management controls.
The attorneys at Rogers & Elliott regularly represent clients before local conservation districts and other regulatory entities on a variety of matters.
Proven Water Law Expertise
Rogers & Elliott’s experience in water law cases includes:
- Lead counsel for the Edwards Underground Water District in the “Farmer’s Well” lawsuit that forced the owner of a leaking, dilapidated well in downtown San Antonio to plug it to conserve groundwater and avoid contamination of the aquifer.
- Lead counsel for the Edwards Underground Water District in the so-called “Catfish Farm Lawsuit” against Living Waters Artesian Springs, LLC. Mr. Rogers’ innovative lawsuit to prevent the company from discharging wastewater from a catfish farm helped protect the aquifer and ended with the facility being shut down and the City of San Antonio purchasing the water rights.
- Lead counsel for the Edwards Underground Water District in the highly-publicized lawsuit filed by the Sierra Club and others to protect the endangered Texas Blind Salamander, Fountain Darter, and other protected fish and plants living in or near major spring openings in San Marcos and New Braunfels. This case resulted in the eventual creation of the Edwards Aquifer Authority by the Texas Legislature in order to prevent a federal takeover of the aquifer.
- Lead counsel for the Edwards Aquifer Authority in the Texas Supreme Court case that considered and rejected numerous constitutional challenges to the Edwards Aquifer Authority Act. Mr. Rogers won the case after arguing that the EAA’s protection of groundwater was an important state interest and that the Act was constitutional, reasonable, and necessary to prevent over-pumping from the Edwards Aquifer.
- Lead counsel for a group of landowners faced with lake and waterfront property issues at Lake Wichita in Wichita and Archer Counties. Mr. Rogers’ work helped bring about an agreement with the City of Wichita Falls to make major improvements and investments in the neglected lake, which had been silting up and losing its recreational value.
- Lead counsel for the Waterfront Property Owners Association in a lawsuit against the irrigation district that owns Medina Lake. The district threatened to curtail private property rights, including the removal of houses that had been in place for decades. After intense negotiations, Mr. Rogers hammered out a historic and innovative system for waterfront property owners to exchange deeds and obtain exclusive ownership and control of their lakefront areas.
- Lead counsel in another case involving Medina Lake before the Texas Supreme Court. The firm represented waterfront property owners who were excluded from using their beachfront by a lot owner who had obtained a deed to the area which the trial judge noted was “pulled out of thin air.” The Supreme Court ruled the bogus deed did not give the defendants ownership of the beachfront area or any right to exclude their neighbors. The defendants were ordered to pay the homeowners’ attorneys’ fees.
- Lead counsel in cases involving alleged damages caused by changes to the natural flow of surface water in violation of Texas Water Code § 11.086.
- Lead counsel in cases over the alleged wrongful alteration of river frontage by a developer.
- Lead counsel in contested administrative proceedings relating to a requested permit to divert surface water for public water supply purposes
- Lead counsel for a developer seeking to enforce a water service utility agreement with a local water district.
- Counsel in a case involving $40 million in damages caused by the diversion of floodwaters into the electrical vault of a skyscraper in Dallas.