2. There was no waiver by Chapter 36 of the City’s
governmental immunity for claims for past due fees,
penalties, and costs assessed under a groundwater
conservation district’s rules governing permits.
Suits to require prospective compliance with
statutory or constitutional provisions are not
prohibited.
2
3. Tex. Water Code § 36.102(e):
In an enforcement action by a district against any person
that is a governmental entity for a violation of district rules,
the limits on the amount of fees, costs, and penalties that a
district may impose under Section 36.122, 36.205, or this
section, or under a special law governing a district operating
under this chapter, constitute a limit of liability of the
governmental entity for the violation.
This subsection shall not be construed to prohibit the
recovery by a district of fees and costs under Subsection (d) in
an action against any person that is a governmental entity.
3
4. The common law regarding ownership of groundwater in place
is that the landowner has absolute title in severalty to the
groundwater beneath his land, qualified by the law of capture
and subject to police regulations.
Landowners have a constitutionally compensable interest in
groundwater.
Factual record not developed to determine whether and what
kind of compensable taking occurred, but likely will depend on
application of the balancing test of Penn Central Transp. Co. v.
New York, 438 U.S. 104 (1978).
4
5. Trial Judgment
Implementation of the EAA Act constituted a regulatory taking
as set forth in the balancing test of Penn Central Transp. Co. v.
New York, 438 U.S. 104 (1978).
Denial of permit for D’Hanis well caused damages of
$134,918.40, based on the difference between dry land and
irrigated farm.
Issuance of permit for Home Place well for less than the
amount requested caused damages of $597,575, based on the
market value per acre-foot of water right requested but not
permitted.
5
6. Are the claims barred by the statute of limitations?
What is the date on which economic impact and adequate
compensation is evaluated?
If there is a taking, who is liable, the State of Texas or the EAA?
Is there a physical taking, a denial of all economic value, or a
Penn Central taking?
Did the court properly determine adequate compensation?
How are the economic benefits that the Braggs received
valued?
6
7. LULAC alleges EAA Director Districts are disproportionately
weighted towards rural districts and favor anglo over minority
voters in violation of the Fourteenth Amendment and the
Voting Rights Act.
EAA has filed a motion to dismiss.
7
8. Suit for judicial review of TWDB finding that GMA 12 DFCs are
reasonable.
Environmental Stewardship alleges TWDB failed to adequately
consider the impact of pumping under the DFCs on spring flow
and surface water, impairment of surface water rights holders
ability to utilize water rights, and impacts to wildlife
dependent on surface water flows.
8
9. The Red River Compact gives Oklahoma wide berth to protect
its water resources governed by the Compact against out of
state transfer and use, and doing so does not violate the
dormant Commerce Clause.
The provisions in the Compact that were designed to ensure
minimum water flow to downstream states did not obligate
Oklahoma to allow Texas entities to appropriate Texas’ share
of water from within Oklahoma’s boundaries.
There is no implied conflict preemption between the Oklahoma
statutes restricting out of state water use and the Red River
Compact.
9
10. TAP sues TCEQ officials for take of whooping cranes in
violation of the Endangered Species Act, alleging that TCEQ’s
water diversion permits limited freshwater into the San
Antonio-Aransas Bay systems.
Texas Chemical Council, Guadalupe-Blanco River Authority,
and San Antonio River Authority allowed to intervene as
Defendants.
Trial denied Motions to Dismiss, Burford Abstention Motions,
and Motions for Summary Judgment and case was tried in
December 2011.
10
11. Ward Timber and other landowners in Region D challenge
TWDB’s approval of the 2012 State Water Plan.
Previous suit by same plaintiffs reversed and remanded TWDB
approval of Region C water plan because of failure to resolve
interregional conflict with Region D plan regarding Marvin
Nichols reservoir.
Plaintiffs seek injunction to prevent financing or any further
action on Region C plan that involves Region D water
resources.
11
12. Request regarding Travis County’s application of Texas Water
Code § 35.019
Q: Are water availability requirements only applicable within
the boundaries of the PGMA? A: No, water availability
requirements apply anywhere in the county where platting is
required.
Q: Do water availability requirements apply to groundwater
and surface water? A: No, water availability requirements apply
only to groundwater.
12
13. Q: May a county adopt water availability requirements in an
area where a GCD has been created, is in the process of, or will
be created in the future? A: Yes.
Q: Does § 36.002 (as amended in the 82nd R.S. (2011)) limit or
revoke the county’s regulatory authority under § 35.019? A:
No.
13
14. §36.121 excludes certain wells supplying municipalities from
GCD regulation. Qualifying municipalities bracketed by
population.
In 2011 legislative session, HB 3109 and HB 2702 both
amended 36.121. HB 2702 created a population minimum of
100,000 for municipalities to qualify.
Q: If both bills amend §36.121, are municipalities of less than
100,000 excluded from the exemption? A: No. HB 3109
prevails over HB 2702 and the minimum population
requirement is not effective.
14
15. Sarah Faust
Kemp Smith LLP
sfaust@kempsmith.com
(512) 320-5466
