Downing, James E.

English

University of Denver

Water Law Review Volume 9 Issue 2 Article 69 1-1-2006 Edwards Aquifer Auth. v. Chem. Lime, Ltd., 2006 Tex. App. LEXIS 1127 (Tex. Ct. App. 2006) James E. Downing Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation James E. Downing, Court Report, Edwards Aquifer Auth. v. Chem. Lime, Ltd., 2006 Tex. App. LEXIS 1127 (Tex. Ct. App. 2006), 9 U. Denv. Water L. Rev. 676 (2006). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW REVIEWtreatment, storage, and delivery system would connect directly to theCity's water distribution system. Hence, the court held the City's watersystem was a regional system under the statutory scheme, and theCommission was within its statutory right to grant the certificate.Therefore, the court affirmed the district court's findings that theCommission acted within its authority by granting the City a certificate.Matthew WillsonEdwards Aquifer Auth. v. Chem. Lime, Ltd., 2006 Tex. App. LEXIS1127 (Tex. Ct. App. 2006) (holding that a court's enjoining of a statuteonly delays its enforcement and does not alter its effectiveness).In the 1993 Edwards Aquifer Authority Act ("Act") and the Texasstate legislature ("legislature") established the Edwards Aquifer Au-thority ("Authority") to govern and administer the use of groundwaterfrom the Edwards Aquifer. The legislature granted a preference underthe Act's permitting system to existing users of aquifer water. Existingusers had to file a declaration of historical use with the Authority byMarch 1, 1994, six months after the Act's effective date. Existing userswere defined as persons who withdrew and beneficially used under-ground water from the aquifer on or before June 1, 1993.The Act provided that the Authority's board of directors would beappointed by various governing bodies affected by the Authority. Thisappointment procedure was required to be submitted to the UnitedStates Department of Justice ("Department") for administrative pre-clearance under section 5 of the Voting Rights Act. The Departmentrefused pre-clearance on the basis that the Act contemplated appoint-ive rather than elective selection of the Authority's board. This madethe appointment provision unenforceable. The legislature did notremedy the Act's section 5 problems until the 1995 legislative session.Thus, the Act's original September 1, 1993 effective date and theMarch 1, 1994 deadline for existing users to file declarations of histori-cal use, both passed during a period in which the Act was made unen-forceable by federal law.In 1995, the legislature amended the Act to change the board's se-lection method from appointment to election. The legislature pro-vided that the amendments would take effect on August 28, 1995, andthe Department pre-cleared the amended Act. However, the legisla-ture did not amend the Act's original March 1, 1994 historical use dec-larations filing deadline, or otherwise address how the expired dead-line was to be adjusted.Six days before the amendments to the Act were to take effect, agroup of local underground water conservation districts and agricul-tural interests brought a constitutional challenge to the Act in the dis-trict court of Medina County, and sought to restrain the Act's admini-stration and enforcement. The court, in Barshop v. Medina County Un-Volume 9COURT REPORTSderground Water District ("Barshop"), held the Act unconstitutional, andenjoined Texas from enforcing the Act. On direct appeal, the TexasSupreme Court, in an opinion issued on June 28, 1996, found the Actconstitutional, and dissolved the district court's injunction.The Texas Supreme Court in Barshop rejected the argument thatthe Act affected an unconstitutional taking of existing users' propertyrights by imposing a March 1, 1994 deadline to file the historical usedeclaration. The court construed the deadline as merely "directory"rather than "mandatory." The statutory deadline, in other words,merely manifested the broader legislative intent that declarations ofhistorical use were to be filed six months after the Authority becameeffective. The court explained that the legislature "obviously intendedthat existing users would have preference over future users," and thus,"provided existing users the opportunity to file their declarations withthe Authority after the effective date of the Act but before allocation ofwater to other potential users." Having construed the statutory dead-line to provide existing users an opportunity to file historicaluse declarations, the Texas Supreme Court held that the Act did notaffect a taking. The Texas Supreme Court denied rehearing of itsjudgment on August 16, 1996.After Barshop, the Authority promulgated rules setting forth theprocedures governing the filing of declarations of historical use. Theproposed rule set a deadline of December 28, 1996, a Saturday, forexisting users to file their declarations of historical use. The Authorityunderstood the Texas Supreme Court to hold that the deadline forexisting users to file declarations of historical use would be six monthsafter the date the Act had become effective. The Authority concludedthat the Act became effective on June 28, 1996, the same date theTexas Supreme Court issued the Barshop opinion. The Authority rea-soned that the implementation of the amended Act had been sus-pended by the district court injunction, but that the injunction wasdissolved by the Texas Supreme Court on June 28, 1996, and the Actthereby became effective on that date. The Authority moved the dead-line to December 30, the first Monday following the 28th, to addressconcerns that its offices otherwise would have been closed on the Sat-urday deadline.Chemical Lime produces lime, a product used in road construc-tion, steel manufacture, water treatment, and the removal of sulfurcompounds from emissions from coal-fired plants. In 1999, ChemicalLime bought APG Lime, including a lime-production plant in NewBraunfels. The New Braunfels plant, in operation since 1907, used wa-ter for lime processing, dust suppression, the cooling of equipment,drinking water, and sanitation. The plant's sole water source was wellwater from the Edwards Aquifer. Chemical Lime filed their applica-tion with the Authority in January 1997, after attempting to locate 21years of historical use data as required by the Authority.Issue 2WATER LA W RE VIE WIn February 1997, the Authority sent Chemical Lime a letter ac-knowledging the receipt of Chemical Line's application for an initialregular permit. In December, the Authority advised Chemical Limethat the Authority preliminarily found Chemical Lime's applicationprovided sufficient evidence to substantiate a declaration of historicaluse. In April 1998, the Authority notified Chemical Lime that thetechnical review of the application was completed on March 21, and,on April 24, the Authority issued Chemical Lime an initial regularpermit to withdraw water from the Edwards Aquifer, subject to the Au-thority's board of director's final action.In November 2000, the Authority rejected Chemical Lime's appli-cation, finding that Chemical Lime's declaration of historical use wasnot filed timely (before December 30, 1996), and that Chemical Lime'shistorical withdrawals were not placed to a beneficial use for irrigation,municipal, or industrial use. Chemical Lime filed a notice of protest inDecember 2000. The Authority attributed the reversal to the discovery,in 2000, of an error in the Authority's coding of Chemical Lime's ap-plication in its database. Because of the error, the application was notcoded as having been filed after the December 30, 1996 deadline, andthus escaped the Authority's notice.Chemical Lime filed suit in the 22nd Judicial District Court, ComalCounty seeking declarations that: (1) the Authority's rule that estab-lished a December 30, 1996 filing deadline was invalid and thatChemical Lime's initial regular permit application was filed timely onJanuary 17, 1997; (2) the Act, which had made the Authority subject tothe Administrative Procedure Act, violated constitutional protectionsof due course of law, separation of powers, open courts and jury trialbecause it afforded inadequate judicial review of the Authority's de-terminations; (3) the Authority's "unlawful actions" effected an uncon-stitutional taking; and (4) in the alternative, assuming that the Author-ity's December 30, 1996 filing deadline was valid, Chemical Lime hadsubstantially complied with it.The district court severed the takings claim. The deadline validityissue and remaining constitutional claims were tried in district court.The substantial-compliance issue was tried to a jury, which found inChemical Lime's favor. The district court rendered judgment that theAuthority's December 30, 1996 deadline was invalid and ChemicalLime's initial regular permit application was timely filed. It also heldthat Chemical Lime had substantially complied with the applicationrequirements, and that "the Authority's denial of Chemical Lime's ini-tial regular permit application on the grounds that it was not timelywas invalid, improper, and illegal." Finally, the district court awardedChemical Lime attorney's fees and costs, and later made findings offact and conclusions of law regarding this portion of the judgment.The Authority appealed.Volume 9COURTREPORTSThe Authority presented three main issues on appeal. The Author-ity first contended that the district court erred in invalidating the Au-thority's rule setting the December 30, 1996 deadline for filing declara-tions of historical use. The Authority urged that the effective date ofthe Act was June 28, 1996, the date Barshop was decided, and that Bar-shop and the legislative intent underlying the Act compelled the agencyto set the deadline, December 30, the first business day following sixmonths after the Barshop decision. The Authority next challenged thedistrict court's holding that Chemical Lime substantially complied withthe December 30 deadline. In its second issue, the Authority con-tended that, as a matter of law, a party could not be in "substantialcompliance" with a filing deadline when there is no dispute that theparty failed to file any portion of the filing until after that deadline.The Authority asserted in its third point that Chemical Lime did notsubstantially comply with the December 30, 1996 deadline.The Authority's argument was based upon two subsidiary proposi-tions. First, the Authority interpreted Barshop to hold that the historicaluse declaration filing deadline was six months after the Act's effectivedate. Second, the Authority contended that the Act's effective date wasJune 28, 1996, at the moment when the Texas Supreme Court issuedits Barshop opinion dissolving the injunction barring implementation ofthe Act. Therefore, the Authority concluded, the Authority's rule set-ting a filing deadline of December 30, 1996 was within its statutorypowers, and Chemical Lime's January 17, 1997 filing was untimely as amatter of law. Chemical Lime did not dispute the Authority's view thatBarshop fixed the filing deadline at six months after the Act's effectivedate, but Chemical Lime disagreed as to the Act's effective date.Chemical Lime argued that the Act did not become effective until atleast August 16, 1996, the date the Texas Supreme Court denied re-hearing in Barshop, because the ruling dissolving the injunction was notfinal until that date. Chemical Lime also suggested that the date theTexas Supreme Court issued its mandate in Barshop, August 31, 1996,might also control. Six months after these dates would have been Feb-ruary 16, 1997 or February 28, respectively. In either case, the Author-ity's rule setting an earlier deadline would have been invalid, andChemical Lime's filing would have been timely.The court agreed with the Authority that the Act became enforce-able on June 28, 1996, when the Texas Supreme Court issued its Bar-shop opinion dissolving the district court's injunction barring the Act'simplementation and enforcement. Specifically, the court held acourt's enjoining of a statute only delays its enforcement, and does notalter its effectiveness. Thus, the effect of the section 5 delays and thedistrict court injunction could only bar implementation and enforce-ment of the Act once it took effect, not change the date the legislaturespecified for the Act to take effect. The court stated, "[o]nce the su-preme court vacated the district court's injunction on June 28, 1996,Issue 2WATER LA W RE VIE Wthe Act immediately could be implemented and enforced unless anduntil the supreme court ordered otherwise." As such, the court furtherheld the Authority acted within its authority in promulgating the rulethat set the historical use filing deadline on Monday, December 30,1996, the first working day following six months after the Texas Su-preme Court issued the Barshap opinion.Further, the court refused to find that Chemical Lime substantiallycomplied with the December 30 deadline. The court found undis-puted evidence that Chemical Lime did not attempt to file its historicaluse declaration until after the December 30, 1996 deadline. The courtstated that, "where the legislature or agency acting within the scope ofits delegated powers has properly established a deadline, it is beyondour power to undermine it by applying a substantial-compliance analy-sis, which appears to be purely ajudge-made creation of common law."As such, the court concluded that, as a matter of law, Chemical Lime'snoncompliance with the December 30, 1996 deadline was not suscep-tible to analysis for "substantial compliance," and that the district courtcould not have submitted a substantial-compliance issue to the jury.The court felt bound by Barshop's holding that the Act's historicaluse filing deadline was "six months after the Authority becomes effec-tive," and because the Act became enforceable on June 28, 1996, thecourt reversed the judgment of the district court and rendered judg-ment that the Authority acted under its statutory authority in setting adeadline for filing declarations of historical use of December 30, 1996.The court also reversed the district court's holding that Chemical Limesubstantially complied with the filing deadline.James E. DowningVIRGINIAAlliance to Save the Mattaponi v. Virginia, 621 S.E.2d 78 (Va. 2005)(holding: (1) an agency's factual findings regarding water rights adju-dications are subject to the "substantial evidence" standard of review;and (2) Indian Rights treaties entered into prior to the creation of theUnited States are not governed by federal law).This opinion is a consolidated appeal of three cases. The VirginiaSupreme Court considered two sets of issues related to a Virginia Wa-ter Protection Permit ("Permit") issued by the State Water ControlBoard ("Board") to the City of Newport News ("City") for the construc-tion of the King William Reservoir. The first set of issues required thecourt to consider whether the Board's issuance of the City's Permitviolated any of its statutory mandates under the State Water ControlLaw. The second set of issues involved an attack on the Board's actionsVolume 9

Edwards Aquifer Auth. v. Chem. Lime, Ltd., 2006 Tex. App. LEXIS 1127 (Tex. Ct. App. 2006)

https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=2040&context=wlr

Edwards Aquifer Auth. v. Chem. Lime, Ltd., 2006 Tex. App. LEXIS 1127 (Tex. Ct. App. 2006)

Abstract

Similar works

Full text

Available Versions

University of Denver