Domel v. City of Georgetown

• Court: Texas Court of Appeals
• Writing for the Court: Before Chief Justice Aboussie; BEA ANN SMITH; ABOUSSIE
• Citation: Domel v. City of Georgetown, 6 S.W.3d 349 (Tex. App. 1999)
• Decision Date: 12 November 1999
• Parties: (Tex.App.-Austin 1999) Ethel Domel and Norman Domel, Appellants v. City of Georgetown, Appellee NO. 03-98-00544-CV

Page 349

6 S.W.3d 349 (Tex.App.-Austin 1999)

Ethel Domel and Norman Domel, Appellants v. City of Georgetown, Appellee

NO. 03-98-00544-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

November 12, 1999

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 94-020-C368, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

BEA ANN SMITH, Justice.

This case presents the question of whether a governmental entity returning treated wastewater into a watercourse under permit from a state agency needs additional permission from downstream landowners. Ethel and Norman Domel live on a small farm east of Georgetown. An intermittent stream crosses their land. The City of Georgetown operates a wastewater treatment plant upstream from the Domels' property. The Domels sued the City in 1994, alleging that the value of their property was diminished by the City's discharge of treated wastewater into the stream. The trial court granted summary judgment in favor of the City on the Domels' claim that a constitutional taking resulted from their allegedly reduced property values. The two issues presented in this appeal are (1) whether the stream on the Domels' land is a watercourse belonging to the State; and (2) if so, whether the City's act of discharging treated wastewater into the stream above the Domels' property can give rise to a constitutional taking absent flooding or violations of the City's discharge permit. We will affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Domels own 185 acres of land east of Georgetown. They have lived on the property for more than fifty years, farming and raising livestock. Their property is traversed by an unnamed tributary that joins the Mankins Branch several miles downstream from the Domels' property and subsequently flows into the San Gabriel River. In recent years, Georgetown has expanded east and a number of residential developments and commercial properties are now located near the Domels' property.

The City owns and operates the Dove Springs Wastewater Treatment Plant, located on a 7.89-acre site across County Road 102 to the west of the Domels' property. The site was originally purchased for a wastewater treatment plant by a private entity, which had been granted a permit from the Texas Water Commission in 1987 to discharge treated domestic wastewater effluent. However, the private entity never constructed a treatment plant; instead, it sold the land to the City. When the City purchased the site, the Water Commission granted the City's application to transfer the discharge permit. In 1990, the City sought to amend its discharge permit to increase the maximum daily discharge from 250,000 gallons per day to 2.5 million gallons in conjunction with its plan to build the Dove Springs Plant. The City proposed releasing the additional water into the tributary at a point less than a mile upstream of the Domels' property.

The Domels and several other neighboring landowners protested the City's request to amend its permit. One of the issues at the contested administrative hearing was whether the City should be required to pipe the effluent past the Domels' property. Both sides presented evidence in a four-day evidentiary hearing. The Domels argued that the tributary, which is dry about six months out of the year,¹ would become a flowing stream of treated effluent when the discharge began; they claimed that the changed characteristics of the stream would interfere with their use of the land for agriculture, ranching, and recreation. The City did not take a stated position on this issue.

In a proposal for decision ("PFD"), the hearings examiner determined that the City was not required to pipe the discharge past the Domels' property, concluding that the tributary was a watercourse belonging to the State of Texas. The examiner noted that the Water Code authorizes the Commission to issue permits for the discharge of wastes into waters of the State if an applicant can show that the proposed treatment facility is capable of meeting proposed permit parameters and that the proposed discharge will maintain the quality of the water. No party contested the sufficiency of the plant design, and the examiner determined that the discharge would have no adverse effect on water quality.

The Water Commission granted the City's application to amend its permit. In its findings of fact, the Water Commission determined that a discharge in compliance with the parameters of the permit does not pose a threat to the quality of water in the state.² Specifically, it determined that the proposed discharge: (1) would not violate the general criteria governing stream quality set forth in volume 31, section 307.4 of the Texas Administrative Code ("T.A.C."); (2) would not cause significant degradation of water quality; (3) would not cause odors in the stream; (4) would not adversely affect water uses set out in section 307.4, namely contact recreation, public water supply, and high-quality aquatic habitat; (5) would not adversely affect water uses attributed to the tributary or to the Mankins Branch; and (6) would not cause a significant increase in algal growth in the receiving waters. The Water Commission also found that the aesthetic qualities of the receiving stream would be preserved; the temperature of the discharge would not interfere with the reasonable use of the water; the proposed facility and discharge would not cause contamination of groundwater; and the tributary had sufficient carrying capacity to contain the discharge. The Water Commission concluded: "Under the facts of this case, there is no basis under the Texas Water Code or the regulations of the Texas Water Commission upon which to require Georgetown to pipe the discharge past the property of the landowners."

In October 1993, the City began operating the Dove Springs Plant and discharging effluent into the tributary. Since that time, the plant has operated continuously without violating the standards of its discharge permit. In 1997, the permit was renewed by the Texas Natural Resource Conservation Commission ("T.N.R.C.C."), the successor agency to the Water Commission.³

The Domels sued the City in 1994, alleging that the unnatural flow of effluent through the tributary caused a taking of or damage to their property without compensation, in violation of the Texas Constitution. See Tex. Const. art. I, 17. The Domels did not allege that the City's actions caused flooding on their land⁴ or violated the permit conditions; instead, they argued that the presence of the treated wastewater diminished the value of their land. The City responded that the discharge of effluent could not constitute a taking because the tributary is a watercourse, and as such is reserved by the State for public use in conserving and developing the State's water resources.

A jury trial began in 1997. The trial court granted the City's motion for a directed verdict, but then granted the Domels' motion for new trial. While the scheduled retrial was pending, the City moved for summary judgment under Rule 166a(c). Tex. R. Civ. P. 166a(c). The City's sole ground for summary judgment was a three-part theory: (1) the tributary is a watercourse as a matter of law; (2) the City's discharge of treated wastewater is an authorized public use of a watercourse in conformance with all requisites of State law; (3) therefore, the lawful discharge of effluent cannot constitute a taking or damaging of the Domels' property. The City submitted evidence supporting its claim that the tributary is a watercourse, including evidence from the hearing before the Water Commission. The trial court granted the City's motion.

The Domels raise two issues on appeal. In their first issue, they claim that the trial court erred in granting summary judgment for the City because there are genuine issues of material fact concerning whether the tributary meets the criteria for a watercourse under Texas law. In their second issue, appellants argue that even if the tributary is a watercourse and the City's discharge of effluent conforms to the permit, it does not follow as a matter of law that the City has not taken or damaged the Domels' property.

DISCUSSION

Collateral Estoppel

We first address the City's argument that collateral estoppel prevents the Domels from relitigating whether the tributary is a watercourse because the Water Commission already determined this issue against them. The Domels respond that the City waived this issue by failing to raise it as one of its grounds for summary judgment or anywhere in the pleadings. We agree.

Collateral estoppel precludes a court from considering a specific issue that has been previously litigated by the same parties in another proceeding. See Steel v. Rhone Poulenc, Inc., 962 S.W.2d 613, 617 (Tex. App.-Houston [1st Dist.] 1997), aff'd, 42 Tex. Sup. Ct. J. 927 (Tex. July 1, 1999). As an affirmative defense, collateral estoppel must be pleaded or it is waived. See id. (citing Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 802 (Tex. 1994), and Voskamp v. Arnoldy, 749 S.W.2d 113, 118 (Tex. App.-Houston [1st Dist.] 1987, writ denied)). A summary judgment cannot be affirmed on the basis of collateral estoppel if it was not asserted as a ground for summary judgment in the trial court. See Sysco Food Servs., 890 S.W.2d at 805. The City did not raise collateral estoppel anywhere in its motion for summary judgment, including its supporting brief specifically incorporated as part of the motion; we therefore hold that the City cannot raise this affirmative defense for the first time on appeal. We turn now to the question of whether the tributary is a watercourse as a matter of law.

I. Did the City Establish as a Matter of Law That the Tributary is a Watercourse?

To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue...