The document provides a summary of key case law updates from 2020 related to water law. It discusses rulings on the Clean Water Act's regulation of groundwater pollution, original actions involving interstate water compacts, and challenges to the Waters of the US rule. It also summarizes cases related to groundwater districts, inverse condemnation and flooding liability, governmental immunity, the Expedited Declaratory Judgment Act, and certificates of convenience and necessity for water utilities. The document analyzes these recent decisions and their implications for water rights and management in Texas.

1. 2020 Case Law Update
TWCA Mid-Year Conference
June 19, 2020
Kimberly G. Kelley, Bickerstaff Heath Delgado Acosta, LLP
Lauren Thomas, Lloyd Gosselink Rochelle & Townsend, P.C.

2. Big Picture Overview
• Federal Law and Other Original Actions
• Groundwater Districts
• Inverse Condemnation and Flooding
• Governmental Immunity
• EDJA
• Certificate of Convenience and Necessity

3. Federal Law and
Other Original
Actions

4. County of Maui, Hawaii v. Hawaii Wildlife
Fund
• Question at issue: Does a discharge of pollutants to
groundwater that is hydrologically connected to surface
waters of the United States constitute a regulated
discharge to be subject to the NPDES Program?
• Held: Yes, when there is a “functional equivalent” of a
direct discharge.

5. Texas v. New Mexico
• Original Action filed by Texas in 2014 against New
Mexico, in which the United States intervened.
• Issue: Texas alleged that New Mexico exceeded its
allotment of Rio Grande Compact water by allowing
people and entities to pump water that is
hydrologically connected to Rio Grande in violation of
the Compact.
• Recent Developments: potential interveners, expert
reports, extended discovery, establishing the law of the
case, and mediation

6. State of Texas, et al v. United States
Environmental Protection Agency, et al
• Issue: Did the 2015 joint rulemaking between the US
EPA and the Corps to define “waters of the United
States” under the CWA violate the Administrative
Procedure Act (“APA”)?
• Held: Yes. The joint rulemaking violated the APA.
• Effect: Sends the rule back to administrative agencies
to proceed with repealing and replacing the rule.

7. Columbia Riverkeeper v. Pruitt,
aff'd sub nom.
Columbia Riverkeeper v. Wheeler
• Issue: Did EPA violate the CWA by failing to list a final
TMDL for temperature for segments of the Snake and
Columbia Rivers?
• Held: Yes. The Court ordered EPA to issue a TMDL within
60 days of the published date of the opinion. The EPA
recently published the proposed TMDL and is now
currently accepting comment through July 21, 2020.

8. Groundwater
Districts

9. Uvalde County Underground Water
Conservation District v. Edwards Aquifer
Authority
• Suit filed: by Uvalde County Underground
Conservation District, et al, against the Edwards
Aquifer Authority regarding an EAA rule on the transfer
of irrigation rights
• Issues: Plaintiffs alleged that the rule allowing base
irrigation on certain developed land to be converted to
a non-agricultural use rather than run with the land
violated EAA’s enabling act.
• Plaintiffs sought and were granted a temporary
injunction in 2018; the parties agreed to stay
proceedings though the 86th Legislative Session.
• Resolution: The dispute was resolved by H.B. 3656.

10. • Issue: Does the Edwards Aquifer Authority’s
(“EAA”) electoral scheme violate the “one person,
one vote” principal of the Equal Protection Clause
of the Fourteenth Amendment?
• Held: No, because the EAA meets the Salyer-Ball
exemption.
• Recent: Supreme Court denied cert on April 27,
2020.
League of United Latin American Citizens
v. Edwards Aquifer Authority

11. Neches & Trinity Valley Groundwater
Conservation District v. Mountain Pure
• Action: The Neches and Trinity Valley GCD filed a petition
seeking injunction against Mountain Pure, a company that
operates a water bottling plant, to force the company to comply
with the TWC and GCD rules
• Issues: The District claimed the company violated its rules by
owning and operating a non-exempt, non-permitted well
• The Mountain Pure argued that it does not need to comply with
the rules because it uses surface water, not groundwater, and
filed a counterclaim alleging the District’s enforcement efforts
constituted tortious interference and a taking
• District filed PTJs on the counterclaims, which ultimately 12th
COA granted
• Recently: Remanded for a determination on the merits. Petition
for review filed Feb. 5, 2020.

12. • Issues: Plaintiff Fazzino owns land in close proximity to
tract with a well owned by the City of Bryan, and filed an
application for a well to allegedly off-set the impacts of the
City’s production, which the GCD denied.
• Fazzino brought suit in Federal District Court alleging a
taking. After dismissal by the District level, Fazzino
appealed to the 5th Circuit
• Held: the 5th Circuit reversed in part, holding a GW district
is not immune from suit based on the 11th Amend., the
takings claim was ripe, and a federal court need not abstain
from considering the takings or EP claims. The Court
upheld Court’s dismissal of 1st Amend. claim, holding that
board member’s rights governed TOMA and are not the
same as those of a member of the general public.
David Stratta & Anthony Fazzino v. Brazos
Valley Groundwater Conservation District

13. Inverse
Condemnation
and Flooding

14. • Claim: Landowners downstream of the Toledo Bend
Reservoir and Dam sued the Sabine River Authority of
Texas (“SRA”) for inverse condemnation, private
nuisance, and trespass to real property based upon
temporary flooding of their properties during a historic
rainfall event in 2016 that led SRA to release water.
• History: The lower court granted SRA’s plea to the
jurisdiction.
• Held: The Appeals Court affirmed the lower court’s
judgment.
Waller v. Sabine River Authority of Texas

15. • Docket management: In response to the hundreds of taking cases
filed after Hurricane Harvey, the cases were consolidated and divided
into claims either upstream or downstream of the Addicks and Barker
Flood-control Reservoirs
• Senior Judge Lettow of the Federal Court of Claims recently issued an
opinion on governmental liability for inverse condemnation actions
upstream
• The Court extensively examined the history of the Corps projects and
applied the taking factors in Arkansas Game & Fish, 568 U.S. 23: (1)
nature and magnitude of the governmental action including time and
duration, severity, and benefit to the government; (2) intent and
foreseeability; and (3) reasonable investment-backed expectations
• Theory of causation involved Corps operation of dam, and decision to
protect downstream properties at the expense of those upstream
within the pool.
• Held: The Court found the federal government liable for the taking of
the upstream plaintiffs’ properties
In Re Upstream Addicks and Barker Flood
Control Reservoirs

16. • Judge Loren Smith of the Federal Court of Claims recently issued
an opinion on governmental liability for inverse condemnation
actions downstream.
• The Court found that neither Texas law nor federal law creates a
protected property interest “in perfect flood control in the face
of an Act of God.”
• Distinguished from the upstream case – “the downstream
plaintiffs’ theory of causation ignores the simple fact that the
gates were initially closed for the sole purpose of protecting
their properties from floodwaters, that such mitigation failed
because the impounded storm waters exceeded the Reservoirs’
controllable capacity, and that the Harvey was the sole and
proximate cause of the floodwaters.”
• Held: The Court found the federal government not liable for the
taking of the downstream plaintiffs’ properties – dismissed case
for 12(b)(6) and granted gov’t summary judgment
In Re Downstream Addicks and Barker
Flood Control Reservoirs

17. • Issue: Does an individual with a takings claim need to first use
state procedure and be denied just compensation at the state
level before the individual can bring the claim in federal court?
This is precedent over 100 years old from Williamson Cty. Reg’l
Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S. Ct.
3108, 87 L. Ed. 2d 126 (1985).
• Held: US Supreme Court reversed its long-standing precedent.
Under the 5th Amendment, a property owner acquires a right to
compensation immediately upon the uncompensated taking
because the taking itself violated the Fifth Amendment.
• Impact: Local governments should anticipate that more takings
claims will end up in federal, rather than state, court.
Knick v. Township. of Scott, Pennsylvania

18. Governmental
Immunity

19. • Issue: Can the State of Texas seek monetary damages in a
regulatory action under the Texas Parks and Wildlife Code
against a political subdivision, meaning that governmental
immunity does not shield the political subdivision?
• Held: No. The the provisions cited in the TPWC had other
reasonable constructions and therefore do not waive
governmental immunity, barring the State’s claims for
monetary damages against CLCND.
• Impact: This case raises further questions about whether
the State will be able to cover restitution, penalties, or
other monetary recovery from governmental entities going
forward absent a clear and unambiguous waiver of
immunity.
Chambers-Liberty Counties Navigation
District v. State

20. • Issue: Does governmental immunity shield the City of Athens and
the AWMA or does the Texas Tort Claims Act (“TTCA”) apply?
• Held: The TTCA does NOT apply because the piece of equipment at
issue (the non-motorized mechanical value) was not motorized.
The Court of Appeals reversed the Trial Court’s order denying the
City’s PTJ and dismissed the plaintiff’s suits against the City.
Running v. City of Athens

21. • Facts: In May 2016, the City of Corpus Christi issued a
boiled water advisory for twelve days. Trevino sued the
City for negligence in May 2018, arguing she was out of
water for two weeks and still forced to pay for the
service.
• Issue: Did Trevino present a valid negligence claim such
that the City’s PTJ should remain dismissed?
• Held: No Trevino failed to comply with a TTCA notice
requirement. The Court reversed the Trial Court’s order
dismissing the PTJ.
City of Corpus Christi v. Trevino

22. EDJA

23. • Background of the San Jacinto River Authority’s water reduction plant and
subsequent contracts with over 80 water customer entities
• Issue: In 2017, SJRA adopted a new rate order that increased the rates and charges
for water under the contracts. Several large-volume water customers, including the
cities of Conroe, Magnolia, and Splendora, declined to pay the new rate.
• SJRA filed suit seeking to obtain 4 declarations under the Expedited Declaratory
Judgment Act, raising a novel question as to whether that was a proper use of the
statute
• Appellate Court Held: The appellate court sided with the cities that declaration (1)
was not a valid determination under the EDJA because the act could not be used to
adjudicate personal liability and breach of specific customer contracts. However, the
court sided with SJRA on declarations (2) – (4), finding that because SJRA was not
seeking adjudications of personal liability but rather declarations as to SJRA’s own
rights and the legal status of its own actions, the declarations were properly within
the bounds of the EDJA.
• Supreme Court Held: The Texas Supreme Court reversed in part, holding that the
EDJA gives the trial court jurisdiction to declare whether the execution of the
contracts—which meets the statutory definition of public security authorization—was
legal and valid, but not whether the Authority complied with the contracts in setting
specific rates.
Cities of Conroe, Magnolia, and Splendora
v. Paxton

24. Certificate of
Convenience &
Necessity

25. • Issue: Crystal Clear SUD sued the PUC Commissioners and
Los Colinas San Marcos Phase I, LLC, claiming its federal
statutory rights were violated when the PUC granted Las
Colinas’s application for decertification under TWC §
13.254(a- 5) despite federal law 7 U.S.C. § 1926(b), which
protects federally-indebted utilities in certain situations.
• Held: Federal law preempted provisions of the Texas Water
Code used by landowners to release their land from a
special utility district’s water certificate of convenience and
necessity service area.
• Recent: Joint motion to stay case pending the disposition of
a related appeal was granted and entered on September 4,
2019.
Crystal Clear Special Utility District v.
Walker

26. .
Questions?

27. 2020 Case Law Update
TWCA Mid-Year Conference
June 19, 2020
Kimberly Kelley | 512.472.8021
kkelley@bickerstaff.com
Lauren Thomas | 512-322-5850
lthomas@lglawfirm.com