DFC Update and Explanatory Report, Kristen Fancher, Sledge Fancher, PLLC

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  • 1. DFC Update and Explanatory Reports Presented By: Kristen Fancher TAGD Spring Meeting February 25, 2014 919 Congress Ave., Suite 460 • Austin, Texas 78701 • Ph: 512-579-3602• kfancher@sledgelaw.com
  • 2. Overview • “New” DFC Adoption Process • “New” Criteria • Balance • Propose DFCs • Explanatory Report • Importance of Explanatory Report • “New” DFC Appeals Process • Take Aways
  • 3. “New” DFC Adoption Process GMA considers 9 statutory criteria and balancing test GMA proposes DFCs for adoption by May 1, 2016 – vote of 2/3 majority of district reps 90-day public comment period begins once proposed DFCs are sent to districts in GMA Individual districts hold public hearings within their boundaries Work for Explanatory Report Individual districts adopt DFCs GMA submits explanatory report to TWDB and to districts GMA reps meet to consider summary reports, any proposed changes to DFCs, and to adopt DFCs Individual districts prepare summary reports
  • 4. “New” Criteria • Balance • between two outer limits • highest practicable and conservation, recharge, etc… Balance Highest practicable level of gw production Conservation Preservation Protection Recharge Control of Waste Subsidence
  • 5. “New” Criteria – Propose DFCs • The “Big 9” – Nos. 1 through 4 1. Aquifer uses or conditions, including conditions that differ substantially from geographic area to another 2. Water supply needs and strategies in the SWP 3. Hydrogeological conditions, including TERS, recharge, inflows, and discharge 4. Other environmental impacts, including impacts on spring flows and other sw and gw interactions
  • 6. “New” Criteria – Propose DFCs • The “Big 9” – Nos. 5 through 9 5. Impact on subsidence 6. Socioeconomic impacts reasonably expected to occur 7. Impact on interests and rights in private property, including ownership and the rights of landowners, their lessees and assigns 8. Feasibility of achieving the DFC 9. Any other information relevant to the DFCs
  • 7. “New” Criteria – Explanatory Report • Explanatory Report = Reasoned Justification Document • Section 36.108(d-3) – The Explanatory Report must (5 criteria): 1. identify each DFC; 2. provide the policy and technical justifications for each DFC; 3. include documentation that the 9 factors were considered by the districts; discussion of how the adopted DFCs impact each factor;
  • 8. “New” Criteria – Explanatory Report • Explanatory Report = Reasoned Justification Document • Section 36.108(d-3) – The Explanatory Report must: 4. list other DFC options considered / reasons why not adopted; and 5. discuss reasons why recommendations made by advisory committees and relevant public comments received by the districts were / were not incorporated into the DFCs.
  • 9. Importance of Explanatory Report • Proves GMAs/districts considered all criteria • The first one is likely the most important • Deference to GCDs – detailed report can prevent a judge from substituting his judgment for that of the GCDs in the GMA • Administrative Record • Due Process
  • 10. DFC Appeal Process • Deadline = 120 days/4 months from date districts adopt DFCs to file petition • Hearing will be held in GMA • Purpose is to take evidence and testimony • Petitioner carries burden of persuasion on whether DFC is unreasonable
  • 11. Take Aways • Local control and unfunded mandates • Deference to GCDs – detailed report can prevent a judge from substituting his judgment for that of the GCDs in the GMA • Chance to show all the hard work you do
  • 12. Questions? Kristen Fancher 512-579-3602 kfancher@sledgelaw.com