1.
Emily W. Rogers
Bickerstaff Heath Delgado Acosta LLP
3711 S. MoPac Expwy.
Bldg. 1, Suite 300
Austin, TX 78746
512-472-8021
erogers@bickerstaff.com
October 12-14, 2016
San Antonio, Texas
Texas Water Conservation Association
2016 Fall Conference
Case Law Update
2016-2017 Football Season

2.
The Superbowl
Texas v. New Mexico, Original No. 141
• Texas alleges New Mexico is depleting
Texas’ share of Rio Grande Water.
• United States was allowed to intervene.
• New Mexico filed a motion to dismiss
Texas’ complaint and the U.S.’s motion to
intervene.
• Oral arguments heard on August 19,
2015.
• Special Master has issued a draft report
recommending denying New Mexico’s
motion, dismissing the U.S. to the extent
it does not have a plausible compact
claim, and dismissing the intervenor
districts.

3.
Overturned on Replay
Harris Cnty Flood Control Dist. et al. v. Kerr, ___ S.W.3d ___, 2016 WL 3418246
(Tex. June 17, 2016)
• Supreme Court withdrew original petition.
• Landowners argued the district’s failure to implement flood control plan, and
county’s approval of development caused flooding.
• Court disagreed holding parties did not have the intent to flood and they did
not take any affirmative actions.
• Failure to take discretionary action is not an affirmative action.
• Landowners have filed a motion for rehearing.

4.
University of Texas vs. Notre Dame
Game (50-47)
Coyote Lake Ranch, LLC v. City of Lubbock,
No. 15-0572, 2016 WL 3176683 (Tex. May 27,
2016).
• City has a deed of groundwater rights to
26,000 acre ranch.
• Deed says the City “may at any time and
location drill water wells . . . and
construct certain . . . facilities . . . on,
over, and under the land.”
• City decided to increase production.
Ranch owners complained about the
electric lines, increased erosion, and
injury to surface.
• Ranch sued saying City had a contractual and common law duty to conduct its
operations with due regard to the surface owner’s rights.
• Trial court enjoined the City. The Court of Appeals reversed.

5.
Coyote Lake Ranch, LLC v. City of Lubbock, No. 15-
0572, 2016 WL 3176683 (Tex. May 27, 2016) (cont’d)
• The Supreme Court took the case and held:
 The deed language was not clear about rights between parties
 The severed groundwater estates is the dominant estate
 The accommodation doctrine applicable in oil and gas law applies
 The accommodation doctrine places the burden on the surface owner to
show:
(1) use of surface completely precludes the existing use; and
(2) there are no reasonable alternative to surface owner; and
(3) there are alternative reasonable, customary, and industry accepted
methods to recover mineral.
• Supreme Court reversed and remanded for further proceedings and lifted the
injunction.

6.
Triple Overtime
In re: Application by the Brazos River Authority for Water Use Permit No. 5851; TCEQ
Docket No. 2005-1490-WR; SOAH Docket No. 582-10-4184.
• System Operation Permit application requested authorization to use water made available
as a result of system operations.
• After initial hearing, BRA was ordered to amend its application to include a water
management plan.
• On January 20, 2016, the TCEQ considered second PFD in the case. Contested issues
included treatment of return flows, reservoir storage capacity concerns, issues regarding
drought, public interest inquiry, environmental flow requirements.
• Commissioners’ interim order determined majority of ALJs’ determinations were
supportable, but remanded for the limited purpose of determining two issues:
 To implement a reduction in water available through a special condition rather than
the Use Appropriation amounts, and
 To revise the permit to treat BRA’s return flows under the bed and banks provision
under Texas Water Code § 11.042(b) and (c), and to treat others’ return flows under §
11.046.

7.
Triple Overtime (cont’d)
• June 3, 2016, the ALJs submitted a supplemental PFDR, which was
considered on August 24, 2016 and adopted an Order Granting Water Use
Permit No. 5851.
• Key provisions:
 Specifies diversion points and diversion reaches;
 Establishes availability of water depending on location and demands;
 Special Condition to address sedimentation;
 Special Condition to address the recent drought;
 Uses the adopted environmental flow standards, and provides that
the analysis under §§ 11.150, 11.151, and 11.152 is not required.
 Surface water and groundwater return flows of others are considered
under § 11.046(c) and 11.121.
 Groundwater return flows of BRA are considered under § 11.042(b).
 Surface water return flows of BRA are considered under § 11.042(c).

8.
Punt
Tex. Comm’n on Envt’l Quality v. Guadalupe
Cty Groundwater Conservation Dist., 2016
WL 1371775 (Tex. App.–San Antonio April
6, 2016, no pet.).
• District Rule 8.1 prohibits a person from
applying or disposing waste on an outcrop
area of any aquifer in the district.
• Post Oak submitted an application with
TCEQ for a landfill permit.
• The district sought a declaratory judgment
that the district’s rules prohibited the
landfill and the district court agreed.
• The Court of Appeals reversed finding that the court lacked jurisdiction
because the claim was not ripe – the TCEQ had not issued a permit.
• The court did not address whether TCEQ’s jurisdiction of solid waste
preempted the district’s authority.

9.
The Statue of Liberty Play
In re: Application by the Lower Colorado River Authority to
Amend its Water Management Plan for Water Use Permit No.
5838A; TCEQ Docket No. 2015-1444-WR.
• Involves amendment to LCRA’s Water Management Plan.
• TCEQ Commissioners considered the hearing requests filed
on the application.
• Commissioners concluded no person was entitled to a
hearing under Texas Water Code § 11.122(b).
• TCEQ granted the application and denied the motions for
rehearing.
• No appeal was filed.

10.
Final Score of the Game
Texas Comm. on Environmental Quality v. Texas Farm Bureau, 460 S.W.3d 264
(Tex. App. – Corpus Christi 2015, pet. denied)
• Texas Supreme Court denied review on February 19, 2016.
Bragg v. Edwards Aquifer Auth., No. 06-11-18170-CV (38th Judicial District,
Medina County, Texas)
• Final Judgment ordered EAA to pay Braggs $2,551.049.60 as just
compensation, plus $1,972,748.71 in interest.
• EAA decided to not appeal.

11.
Tie
Forestar (USA) Real Estate Group, Inc. v. Lost Pines Groundwater
Conservation Dist. et al., No. 15369 (335th Dist. Court of Lee County,
Texas, filed March 14, 2014); Forestar (USA) Real Estate Group, Inc. v.
Lost Pines Groundwater Conservation Dist. et al., No. 15385 (335th Dist.
Court of Lee Cnty, Tex., filed April 17, 2014).
• Parties settled this case in late December 2015.
• Settlement allows Forestar to pump 12,000 AF of water per year
for the first 5 years. To get the full 28,500 AF, Forestar will have
prove the estimated DFC water level is less than the desired
condition. Forestar is also required to install monitoring wells.

12.
Halftime
Decisions Pending:
R.E. Janes Gravel Co. v. Covar et al., No.
14-15-00031-CV (14th Court of Appeals,
filed Jan. 8, 2015).
• Involves the interpretation of
Texas Water Code § § 11.042(c)
and 11.046(c).
• Oral arguments heard on
November 17, 2015.
• Case submitted for decision.
• Post-hearing briefing, but no
decision.
Upper Trinity Regional Water Dist. And TCEQ v. National Wildlife Federation, No. 01-15-
00374-CV (1st Court of Appeals, filed April 21, 2015).
• Involves the adequacy of water conservation plans.
• Case has been set for submission on briefs. The requests for oral argument were
denied.
• Case submitted for decision on June 15, 2016.

13.
Official Rulebook
Austin Bulldog v. Leffingwell, 490 S.W.3d 240 (Tex. App. – Austin 2016,
no pet.).
• City officials’ personal email addresses were subject to disclosure.
Adkisson v. Paxton, 459 S.W.3d 761, 775 (Tex. App. – Austin, no pet.).
• Official-capacity emails are information of the governmental body and
subject to disclosure regardless if the account or device is private.

14.
Illegal Shift
Zipp Road Utility Company LLC's Notice of
Intent to Provide Sewer Service to an Area
Decertified from Guadalupe-Blanco River
Authority, PUC Docket No. 45679. (Texas
Water Code § 13.254 case).
City of Celina's Notice of Intent to Provide
Water and Sewer Service to Area Decertified
from Aqua Texas, Inc. in Denton County, PUC
Docket No. 45848. (Texas Water Code §
13.254 case). (Hearing September 16, 2016).
Application of City of Cibolo for Single
Certification in Incorporated Area and to
Decertify Portions of Green Valley Special
Utility District's Sewer Certificate of
Convenience and Necessity in Guadalupe
County, PUC Docket No. 45702. (Texas Water
Code § 13.255). (Case in discovery. Hearing
on January 17, 2017).

15.
Illegal Shift (cont’d)
• Expedited decertification cases under Texas Water Code §§ 13.254 and
13.255.
• PUC ordered SOAH to:
(1) Determine what property, if any, has been rendered useless and
valueless by the decertification;
(2) If the appraisals are limited to valuing property rendered useless and
valueless.
• With respect to the § 13.254 cases, the PUC took a different position than
that which was taken in City of Celina's Notice of Intent to Provide Water
and Sewer Service to Area Decertified from Mustang Special Utility
District in Denton County, PUC Docket No. 45151.
 No contested case hearing was permitted in this case. Mustang SUD
has appealed that case, which is now pending under Mustang SUD v.
Public Utility Commission of Texas, Cause No. D-1-GN-16-000873.

16.
Play Under Review
Other cases to watch:
Meyers et al. v. Lost Pines Groundwater Conservation
Dist. & End Op, L.P., No. 29696 (21st Dist. Ct. of
Bastrop Cnty, Tex., filed Nov. 7, 2014).
• Case is about standing of landowners’ to
contest a groundwater permit.
City of Conroe, Texas, et al. v. Lone Star Groundwater Conservation Dist., et al., No. 15-08-
08942 (284th Dist. Ct., Montgomery Cnty, Tex., filed Aug. 31, 2015).
• Plaintiffs claim desired future conditions adopted by the District will take, damage, or
destroy the Plaintiffs’ property.
• Interlocutory appeal of a denial of a plea to the jurisdiction filed by the district and the
board of directors
 Lone Star Groundwater Conservation Dist., et al, v. City of Conroe, et. al, No.
09-16-00201-CV (9th Court of Appeals, June 6, 2016).

17.
Play Under Review
Cases to watch (cont’d):
Fort Stockton Holdings, LP v. Middle Pecos Groundwater Conservation
Dist. et al., No. 08-15-00382-CV (8th Court of Appeals, filed Dec. 29,
2015).
• Fort Stockton Holdings requested new permit from GCD to pump
47,418 acre-feet for municipal use and to transport the water out
of the district. At issue was whether the permit was conversion of
historic and existing use permits.
• The GCD denied the permit and Fort Stockton sued.
• District court ruled on September 21, 2015 in favor of the District.
• Fort Stockton Holdings has appealed. The takings claim has been
severed and abated.
• Case is set for oral argument on October 27, 2016
• See also Republic Water Co. of Tex., et al. v. Middle Pecos
Groundwater Conservation Dist., No. 4:16-CV-33 (W.D. Tex.)

18.
Play Under Review
Graham, et. Al v. Tex. Comm’n on Env’tl Quality, No. D-1-
GN-005510 (53rd Dist. Ct., Travis County, Tex., filed Dec. 5,
2015).
• Appeal of TCEQ’s decision to issue wastewater permit
in Application of DHJB Development, LLC for a Major
Amendment to TPDES Permit No. WQ0014975001,
TCEQ Docket No. 582-14-3427; SOAH Docket No.
2013-2228-MWD.
• At issue, in part, is characterization of the discharge
route as a state watercourse.
• Hearing is set for December 14, 2016.

19.
Play Under Review
Other cases of interest to watch:
• Petition by the City of Dallas for Review of a Decision by the Sabine River
Authority; PUC Docket No. 43674; SOAH Docket No. 473-15-1149.
 Abated pending outcome of other cases.
• City of Dallas v. Sabine River Auth., No. 03-15-00371-CV (3rd Court of
Appeals, filed June 16, 2015).
 Briefing complete and case has been submitted (March 23, 2016).
• City of Dallas v. Cary Mac Abney et al.; Cause No. D150045C (pending in
the 260th Dist. Court of Orange Cnty, Tex.).
• State of Texas, et al. v. United States Environmental Protection Agency, et
al., No. 3:15-cv-0162 (Southern District of Texas – Galveston Division).
 On hold while 6th Circuit case proceeds.

20.
Play Under Review
• City of Austin, Texas v. Public Utility Comm’n of Texas and State Office of
Admin. Hearings and North Austin Municipal Utility Dist. No. 1, Northtown
Municipal Utility Dist., Travis County Water Control and Improvement Dist.
No. 10, and Wells Branch Municipal Utility Dist., D-1-GN-15-00513 (200th
Dist. Court, Travis County, Texas).
 Wholesale rate appeal under Tex. Water Code § 13.244.
• Petition of Travis County Municipal Utility Dist. No. 12 Appealing Change
of Wholesale Water Rates Implemented by West Travis County Public Utility
Agency, City of Bee Cave, Texas, Hays County, Texas, and West Travis
County Municipal Utility Dist. No. 5; PUC Docket No. 42866; SOAH
Docket No. 473-14-5144 (First Petition). PUC Docket No. 43081; SOAH
Docket No. 473-15-0218 (Second Petition).
 Order issued in First Petition dismissing case because no abuse of
monopoly power shown.
 Declined to determine if the Agency is a retail public utility.

21.
Play Under Review
• Ex Parte San Jacinto River Auth., No. D-1-GN-16-004151 (98th Dist., Travis
County, Texas, Aug. 31, 2016).
 Bond validation suit seeking to establish the legality and validity of the
fees it seeks to collect from participants in a surface water treatment
project.
• Petition by Kempner Water Supply Corporation to Revise Rates for Wholesale
Water Service to the City of Lampasas, PUC Docket No. 45711.
 City, the contract wholesale water supplier of Kempner, filed a wholesale
rate review.
 PUC is allowing case to proceed under Texas Water Code §12.013.

22.
© 2016 Bickerstaff Heath Delgado Acosta LLP
22
Emily W. Rogers
Tel: 512-472-8021
erogers@bickerstaff.com
Emily practices in the areas of water and environmental law,
administrative law, and public law. She represents
municipalities, river authorities and water districts before
state and federal agencies on water and environmental
permitting and enforcement matters.