Barshop v. Medina County Underground Water Conservation Dist.

Citation925 S.W.2d 618
Decision Date16 August 1996
Docket NumberNo. 95-0881,95-0881
Parties39 Tex. Sup. Ct. J. 858 Phil BARSHOP, Ralph Zendejas, Mike Beldon, Rosa Maria Gonzalez, John Sanders, Sylvia Ruiz Mendelsohn, Joe Bernal, Rogelio Munoz, Mack Martinez, Jane Hughson, Doug Miller, Paula DiFonzo, and The State of Texas, Appellants, v. MEDINA COUNTY UNDERGROUND WATER CONSERVATION DISTRICT, et al., Appellees.
CourtSupreme Court of Texas

Barry A. Chasnoff, Stephan B. Rogers, Eulogio Garza, San Antonio, Elbert Hooper, Joe R. Greenhill, Corwin W. Johnson, Austin, Mary Q. Kelly, L. Eric Friedland, Charles C. Bailey, Russell S. Johnson, Richard L. Crozier, San Antonio, Dan Morales, Javier Aquilar, Harry G. Potter, Brian E. Berwick, Austin, Polly Jessica Estes, San Antonio, for Appellants.

W. Scott McCullough, E. Small, Gary L. Bledsoe, Austin, Louis T. Rosenberg, San Antonio, Pedro G. Nieto, Uvalde, Richard Wesley Russell, Castroville, Jennifer S. Riggs, Austin, for Appellees.

Justice ABBOTT delivered the opinion for a unanimous Court.

This case concerns water rights in Texas. The clash between the property rights of landowners in the water beneath their land and the right of the State to regulate water for the benefit of all is more than a century old. This case presents another chapter in this ongoing battle.

Historically, landowners have had property rights in the water beneath their land. Over time, however, the State has increasingly attempted to regulate water usage and its withdrawal from the ground. Indeed, the State has the responsibility under the Texas Constitution to preserve and conserve water resources for the benefit of all Texans. Article 16, section 59 of the Texas Constitution provides:

The conservation and development of all of the natural resources of this State, ... and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.

TEX. CONST. art. XVI, § 59(a). Pursuant to this constitutional authority, the Legislature enacted the Edwards Aquifer Act and created the Edwards Aquifer Authority. Plaintiffs claim that the Act violates their right to withdraw water from their property.

The Plaintiffs in this case consist of the Medina County Underground Water Conservation District, the Uvalde County Underground Water Conservation District, the Texas and Southwestern Cattle Raisers Association, Russell Brothers Cattle Company, and Bruce Gilleland (collectively referred to as "Plaintiffs"). They filed suit against the individual directors of the Edwards Aquifer Authority, the State of Texas, and the City of San Antonio (collectively referred to as "the State"). Plaintiffs claim that various provisions of the Edwards Aquifer Act violate the Texas Constitution. The district court agreed with Plaintiffs and enjoined the Act's implementation. The State then perfected a direct appeal to this Court under section 22.001 of the Government Code.

This appeal centers on whether the Act is constitutional on its face, not whether it is unconstitutional when applied to a particular landowner. Under a facial challenge, Plaintiffs must establish that the statute, by its terms, always operates unconstitutionally. We conclude that Plaintiffs have not sustained that burden. Accordingly, we reverse the judgment of the trial court and render judgment that the Act is not facially unconstitutional.

I

The Edwards Aquifer is a unique underground system of water-bearing formations in Central Texas. Water enters the aquifer through the ground as surface water and rainfall and leaves the aquifer through well withdrawals and springflow.

The aquifer is the primary source of water for residents of the south central part of this state. It is vital to the general economy and welfare of the State of Texas. See Act of May 30, 1993, 73d Leg., R.S., ch. 626, § 1.06, 1993 Tex. Gen. Laws 2355, as amended by Act of May 29, 1995, 74th Leg., R.S., ch. 261, 1995 Tex. Sess. Law Serv. 2505. Because of anticipated increases in the withdrawal of water from the aquifer and the potentially devastating effects of a drought, the Legislature determined it was "necessary, appropriate, and a benefit to the welfare of this state to provide for the management of the aquifer." Id. The Legislature thus enacted the Edwards Aquifer Act in 1993 to manage the aquifer and to sustain the diverse economic and social interests dependent on the aquifer water. Id. § 1.01.

The Act establishes a conservation and reclamation district named the Edwards Aquifer Authority to regulate groundwater withdrawals by well from the aquifer. Id. §§ 1.02, 1.14. The Authority's jurisdiction includes all or parts of Atascosa, Bexar, Caldwell, Comal, Guadalupe, Hays, Medina, and Uvalde counties. Id. § 1.02. The Authority supersedes the Edwards Underground Water District, which previously possessed limited power to govern the aquifer. Id. § 1.41.

The Act imposes an aquifer-wide cap on water withdrawals by non-exempt wells of 450,000 acre-feet of water per year through the year 2007 and 400,000 acre-feet per year thereafter. 1 Id. § 1.14(b) & (c). The Authority can increase the withdrawal caps if it determines that additional water supplies are safely available from the aquifer. Id. § 1.14(d). The Authority will allocate these caps among wells by a permit system. However, all wells producing no more than 25,000 gallons of water a day for domestic or livestock purposes are exempt from the permit system and the caps. Id. §§ 1.16(c), 1.33. This exemption allows all landowners, except those within or serving a platted subdivision, to drill wells for household purposes, watering animals, or irrigating a family garden. Id. §§ 1.03(9), 1.33.

The permit system established by the Act gives preference to "existing users." The Act defines "existing users" as those persons who withdrew and beneficially used underground water from the aquifer on or before June 1, 1993. Id. § 1.03(10). The Authority will grant regular permits only to existing users who properly file a declaration of historical use and who can establish, by convincing evidence, beneficial use of the water withdrawn between June 1, 1972 and May 31, 1993. Id. § 1.16. The Act requires existing users to file this declaration of historical use on or before March 1, 1994. Id. Until regular permits are granted, existing users can withdraw and beneficially use water, provided it is not wasted. Id. § 1.17.

The Act entitles an existing user to a permit for an amount of water equal to the user's maximum beneficial use of water during any one calendar year of the historical period, unless the sum-total amount of such use throughout the aquifer exceeds 450,000 acre-feet. Id. § 1.16. If this occurs, the Authority is required to adjust proportionately the amount of water authorized for withdrawal under the permits to meet the cap. 2 Id.

To the extent that water is available for permitting after the issuance of permits to existing users, the Authority may issue additional regular permits, subject to the 450,000 acre-feet cap. Id. § 1.18. Under this provision, landowners (other than those in platted subdivisions) who cannot establish beneficial use of aquifer water prior to June 1, 1993 will not be entitled to a water withdrawal permit unless the aggregate of all existing user permits is less than 450,000 acre-feet. Such landowners would nevertheless be able to withdraw up to 25,000 gallons of water a day under the domestic and livestock use exemption.

Under certain circumstances, the Authority may also issue interruptible permits allowing some landowners to withdraw water only when the level of the aquifer is at specified depths. Id. § 1.19. Furthermore, the Authority possesses the power to issue emergency permits to prevent the loss of life or to prevent severe, imminent threats to the public health or safety. Id. § 1.20.

The Act was originally passed on May 30, 1993, and was to take effect September 1, 1993. However, it did not become effective then because the United States Department of Justice refused to give administrative preclearance to the Act under section 5 of the Voting Rights Act due to the appointment method of selecting the board of directors for the Authority. In response, the Legislature amended the Act in May 1995, changing the board's selection method from appointive to elective. See Act of May 29, 1995, 74th Leg., R.S., ch. 261, 1995 Tex. Sess. Law Serv. 2505. In August 1995, the Department of Justice precleared the amended Act.

The amended Act was to be effective August 28, 1995. Id. However, six days before the effective date, Plaintiffs brought this lawsuit to restrain the administration and enforcement of the Act. The district court held the Act unconstitutional and enjoined the State from enforcing the Act.

The district court made 361 findings of fact, including sweeping findings concerning each aspect of the Act it held unconstitutional. These findings of fact, however, have a limited role in our constitutional review of this Act. Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504, 520 (Tex.1995). If the Act is constitutional under any possible state of facts, we should presume that such facts exist without making a separate investigation of the facts or attempting to decide whether the Legislature has reached a correct conclusion with respect to the facts. Id.; see also Corsicana Cotton Mills v. Sheppard, 123 Tex. 352, 71 S.W.2d 247, 250 (1934). Thus, in our review of this Act, we focus on the entire record presented to us rather than simply relying upon the fact findings of the district court.

Because of the district court's injunction, this Act, which was originally to be effective September 1, 1993, has yet to be implemented. The State brought this direct appeal to this Court seeking authorization to implement ...

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