Administrative Appeals of Planning Decisions by Groundwater Conservation Districts TWCA 66 th Annual Convention Dallas,

1. Administrative Appeals of Planning Decisions by Groundwater Conservation DistrictsTWCA 66th Annual ConventionDallas, Texas March 3-5, 2010 Andrew S. “Drew” Miller Kemp Smith LLP dmiller@kempsmith.com www.kempsmith.com 816 Congress 221 North Kansas Suite 1150 Suite 1700 Austin, Texas 78701 El Paso, Texas 79901 512.320.5466 915.533.4424 512.320.5431 (fax) 915.546.5360 (fax)

2. Inside Bilinski’s Sausage Factory – Albany, NY

3. Three Types of Petitions under Chapter 36 • § 36.108(l) – petition to TWDB – appealing reasonableness of DFCs • § 36.1072(g) – petition to TWDB – to resolve alleged conflict between a district’s MP and the state water plan • § 36.108(f) – petition to TCEQ – requesting an inquiry on whether district(s) refused to join in the planning process or if the process failed to result in adequate planning.

4. The Administrative Petition-Initiated Proceedings of Chapter 36, Texas Water Code

5. Desired Future Condition (DFC) • “In essence, a [DFC] is a management goal that captures the philosophy and policies addressing how an aquifer will be managed. What do you want your aquifer to look like in the future.” • Robert E. Mace, RimaPetrossian, Robert Bradley, William Mullican, III, Lance Christian, A Streetcar Named Desired Future Conditions: The New Groundwater Availability for Texas (Revised), State Bar of Texas, The Changing Face of Water Rights in Texas 2008 (May 8–9, 2008)

6. § 36.108(l) – appeal to TWDB of approval of DFCs • “A person with a legally defined interest in the groundwater in the [GMA], a district in or adjacent to the [GMA], or a regional water planning group for a region in the [GMA] may file a petition with [TWDB] appealing the approval of the [DFCs] . . . established under this section.” 

7. § 36.108(l) – appeal to TWDB of approval of DFCs • “The petition must provide evidence that the districts did not establish a reasonable desired future condition of the groundwater resources in the groundwater management area.”

8. Contents of petition under § 36.108(l) • 31 TAC § 356.43(b)- detailed requirements

9. § 36.108(l) petitions – Procedure • 30-day notice to districts required • Hearing at a central location in the GMA • Procedures for hearing at 31 TAC 356.4 • List of findings based on evidence at the hearing to be prepared by the Executive Administrator • Executive Administrator may provide a summary, analysis and recommendations

10. Criteria that the board will consider when determining whether a DFC is reasonable • whether the adopted DFCs are physically possible and the consideration given groundwater use; • the socio-economic impacts reasonably expected to occur; • the environmental impacts including, but not limited to, impacts to spring flow or other interaction between groundwater and surface water; • the state's policy and legislative directives; • the impact on private property rights; • the reasonable and prudent development of the state's groundwater resources; and • any other information relevant to the specific DFC. 31 TAC § 356.45(c)

11. Possible outcomes of proceeding under § 36.108(l) • 1. DFCs are reasonable – proceeding ends • 2. DFCs are unreasonable – board will submit a report to the districts in the GMA that includes a list of findings and recommended revisions to the DFCs. • The districts are to prepare a revised plan in accordance with the board’s recommendations and hold at least one public hearing, after which they shall revise the DFCs and submit them to TWDB for review.

12. § 36.1072(g) – conflict between management plan and state water plan • A person with a legally defined interest in groundwater in a district or the regional water planning group may file a petition with the development board stating that a conflict requiring resolution may exist between a district’s approved management plan . . . and the state water plan.”

13. § 36.1072(g) – conflict between management plan and state water plan • Required contents of petition • 31 TAC § 356.10(a) • Procedure • Responsive briefing? • Determination by Executive Administrator as to whether conflict requiring resolution exists

14. § 36.1072(g) – Possible Outcomes • If Executive Administrator determines that no conflict exists - proceeding ends • If EA determines that a conflict exists – next steps • Assistance and coordination by EA to resolve the conflict • Mediation • TWDB may resolve the conflict – may require revision to district’s management plan • Appeal

15. Petition to TCEQ under§ 36.108(f) • “A district or person with a legally defined interest in the groundwater within the management area may file a petition with [TCEQ] requesting an inquiry if a district or districts refused to join in the planning process or the process failed to result in adequate planning, including the establishment of reasonable [DFCs] . . . “

16. Evidence to be provided/grounds for inquiry under § 36.108(f) • (1)  a district in the [GMA] has failed to adopt rules; • (2)  the rules adopted by a district are not designed to achieve the [DFCs]]established during the joint planning process; • (3)  the groundwater in the [GMA] is not adequately protected by the rules adopted by a district; or • (4)  the groundwater in the [GMA] is not adequately protected due to the failure of a district to enforce substantial compliance with its rules.

17. District response in proceeding under § 36.108(f) • Any GCD within the GMA that is the subject of the petition may file a response within 35 days. 30 TAC § 293.23(b)(5).

18. TCEQ determination under§ 36.108(f) • Within 90 days, TCEQ shall review the petition and either: • (1) dismiss the petition if it finds that the evidence is not adequate to show that any of the conditions alleged in the petition exist; or • (2) select a review panel.

19. Appointment of Review Panel under § 36.108(h) • Consists of a chairman and 4 other members. • A director GM of a district outside the GMA may be appointed to the review panel. • TCEQ may not appoint more than 2 members of the panel from any one district.

20. Activities and Report of the Review Panel under § 36.108(i) • TCEQ may direct the panel to conduct public hearings in the GMA to take evidence. • Review panel may attempt to negotiate a settlement. • Within 120 days of appointment, the review panel shall adopt a report. • Report must include findings and recommended actions for TCEQ.

21. Action by TCEQ following report of review panel under § 36.108(k) • TCEQ or its ED is to act within 45 days of receiving report • If TCEQ finds that any of the alternative grounds exist, it may: • (1)  issue an order requiring the district to take certain actions or to refrain from taking certain actions; • (2)  dissolve the board in accordance with Sections 36.305 and 36.307 and calling an election for the purpose of electing a new board; • (3)  request the attorney general to bring suit for the appointment of a receiver to collect the assets and carry on the business of the groundwater conservation district; or • (4)  dissolve the district in accordance with Sections 36.304, 36.305, and 36.308.

22. Outcomes of Petitions appealing DFCs • GMA 9 • GMA 1

23. General Observations? Drew Miller dmiller@kempsmith.com Kemp Smith, LLP www.kempsmith.com 816 Congress 221 North Kansas Suite 1150 Suite 1700 Austin, Texas 78701 El Paso, Texas 79901 512.320.5466 915.533.4424 512.320.5431 (fax) 915.546.5360 (fax)