A federal appeals court has ruled the Brazos Valley groundwater district can be sued because it is not a state agency.
That means a federal trial will be held on a Brazos County landowner’s claim that the city of Bryan is taking his water without compensation.
The fifth U.S. circuit court of appeals recently overturned the decision of a federal judge in Waco. The appeals court ruled the groundwater district has the same footing as counties and other political subdivisions.
The groundwater district’s general manager and the city of Bryan declined comment about the court of appeals decision. While the city is not a co-defendant in the lawsuit, the city council appoints members to the district board who are named in the lawsuit.
At stake is a water well permit the district granted to the city of Bryan in 2006, then denied a permit sought by neighboring landowner Anthony Fazzino.
After Fazzino failed to get the groundwater district to reduce the city of Bryan’s production, Fazzino tried and failed to get the groundwater district to issue a water permit to produce the same amount of water.
Fazzino, who owns 26 acres, was told he was required to have 649 acres…compared to the city of Bryan’s 2.7 acres. The appeals court wrote that the groundwater district unequally applied its rules by exempting the city of Bryan while “rigorously enforcing” rules against Fazzino.
The court of appeals described as “dramatic”, the results of the preference that the groundwater district gave to the city of Bryan. Because the city’s well is on less than three acres of land, the appeals court ruling stated the city should have been limited to pumping 192 gallons of water per minute instead of 3,000 gallons per minute as the district granted.
The task of the trial judge, according to the appeals court, is to assess whether the groundwater district’s decision to give the city of Bryan its permit resulted in a taking of Fazzino’s water.
The Texas Southwestern Cattle Raisers Association filed a brief supporting Fazzino’s lawsuit. That brief was written by Fort Worth lawyer Jim Bradbury.
Click below to hear comments from Jim Bradbury, visiting with WTAW’s Bill Oliver.