Edwards Aquifer Auth. v. Chemical Lime

• Court: Texas Supreme Court
• Writing for the Court: Hecht
• Citation: Edwards Aquifer Auth. v. Chemical Lime, 291 S.W.3d 392 (Tex. 2009)
• Decision Date: 26 June 2009
• Docket Number: No. 06-0911.,06-0911.
• Parties: EDWARDS AQUIFER AUTHORITY et al., Petitioners, v. CHEMICAL LIME, LTD., Respondent.

291 S.W.3d 392

EDWARDS AQUIFER AUTHORITY et al., Petitioners, v. CHEMICAL LIME, LTD., Respondent.

No. 06-0911.

Supreme Court of Texas.

Argued April 1, 2008.

Decided June 26, 2009.

Rehearing Denied September 25, 2009.

Mike A. Hatchell, Locke Lord Bissell & Liddell, LLP, Andrew S. Miller, Darcy Alan Frownfelter, Kemp Smith, P.C., Austin, TX, Ken Slavin, Mark N. Osborn, Deborah Clarke Trejo, Kemp Smith, LLP, El Paso, TX, for Petitioner.

William John Moltz, Janessa Coffman Glenn, Moltz Morton O'Toole, L.L.P., Thomas R. Phillips, Baker Botts L.L.P., Austin, TX, Robert B. Gilbreath, Hawkins, Parnell & Thackston, LLP, Paul C. Watler, Jackson Walker, L.L.P., Alisa Marie Frame, Baker Botts L.L.P., Dallas, TX, for Respondent.

Amy Warr, Alexander Dubose & Townsend, LLP, Kristofer S. Monson, Asst. Solicitor General, Julie A. Ford, R. James George Jr., George & Brothers LLP, Austin, TX, for Amicus Curiae.

Justice HECHT delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice O'NEILL, Justice WAINWRIGHT, Justice BRISTER, Justice MEDINA, Justice GREEN, Justice JOHNSON and Justice WILLETT joined.

Whether, as a general matter, an appellate court's decision takes effect the moment the court issues its opinion, order, or judgment, or later when rehearing is denied or the time for rehearing expires, or still later when the clerk issues the mandate, is a difficult question under Texas law and procedure, as reflected by the competing arguments in JUSTICE BRISTER'S and JUSTICE WILLETT'S separate opinions, and one we need not answer today. We all agree that if an appellate court expressly states the time for its decision to take effect, that statement controls. That rule applies here.

In Barshop v. Medina County Underground Water Conservation District, we prescribed a filing deadline "six months after the [Edwards Aquifer] Authority becomes effective".¹ As it happened, the Authority began operations the day we issued our opinion and thus became effective. The deadline was set at six months from that date. We hold that the Authority correctly applied Barshop, and therefore we reverse the judgment of the court of appeals.² We remand the case to the trial court for further proceedings.

I

The Edwards Aquifer is an underground layer of porous, water-bearing rock, 300-700 feet thick, and five to forty miles wide at the surface, that stretches in an arced curve from Brackettville, 120 miles west of San Antonio, to Austin. It is the primary source of water for south central Texas and therefore vital to the residents, industry, and ecology of the region, the State's economy, and the public welfare.

Record droughts in the early 1950s prompted the Legislature to create the Edwards Underground Water District in 1959³ "for the purpose of conserving, protecting and recharging the [aquifer's] underground water-bearing formations ... and for the prevention of waste and pollution".⁴ Although the District's powers were broadened over the years, it still lacked the regulatory authority the Legislature came to believe was essential. In 1993, the Legislature passed the Edwards Aquifer Authority Act (EAAA),⁵ which replaced the District with the Edwards Aquifer Authority, giving the Authority broad powers "for the effective control of the resource to protect terrestrial and aquatic life, domestic and municipal water supplies, the operation of existing industries, and the economic development of the state."⁶ The EAAA also expanded the covered territory.

The EAAA prohibits withdrawals of water from the aquifer without a permit issued by the Authority,⁷ limits the total permitted withdrawals per calendar year,⁸ and gives preference to "existing user[s]"—defined as persons who "withdr[ew] and beneficially used underground water from the aquifer on or before June 1, 1993."⁹ With few exceptions, water may not be withdrawn from the aquifer through wells drilled after June 1, 1993.¹⁰ A permit applicant must file with the Authority on a prescribed form¹¹ a "declaration of historical use of underground water withdrawn from the aquifer during the historical period from June 1, 1972, through May 31, 1993."¹² Subject to the limit on total withdrawals of water from the aquifer, an existing user who files a declaration "as required", pays an application fee (set at $25), and "establishes by convincing evidence beneficial use of underground water from the aquifer"¹³ is entitled to "a permit for withdrawal of an amount of water equal to the user's maximum beneficial use of water without waste during any one calendar year of the historical period."¹⁴ After existing users' applications have been processed, the Authority may issue additional permits up to the cap on total annual withdrawals.¹⁵ The Authority's board of directors is required to "adopt rules necessary to carry out the authority's powers and duties ..., including rules governing procedures of the board and authority."¹⁶

The EAAA was enacted May 30, 1993. The Authority was to commence operations September 1, 1993, the general effective date of the statute, but the new regulatory scheme was to be phased in over six months.¹⁷ Existing users had until March 1, 1994, to file permit applications,¹⁸ at which point the permit requirement would take effect. After March 1, a filer could generally continue to withdraw water pending approval of its application.¹⁹

But implementation of the EAAA was delayed. Prior to September 1, 1993, the United States Department of Justice refused administrative preclearance for the new Authority under section 5 of the Voting Rights Act of 1965.²⁰ On May 29, 1995, the Legislature amended the EAAA to meet the Department's objections, and the Department granted preclearance. The amended statute was to be effective August 28, 1995,²¹ but on August 22, a group of landowners and others sued for a declaration that the EAAA was facially unconstitutional. The district court issued a temporary restraining order the same day prohibiting the Authority from beginning operations. On November 27, 1995, the district court rendered judgment declaring the EAAA unconstitutional and permanently enjoining implementation of its provisions. But on direct appeal, this Court in Barshop v. Medina County Underground Water Conservation District held that the EAAA was not unconstitutional on its face and therefore reversed the district court's judgment, dissolved the injunction, and remanded the case to determine whether attorney fees should be awarded.²² We issued our opinion and judgment on June 28, 1996, denied rehearing on August 16, 1996, and issued our mandate on February 10, 1997.

The Authority began operations the day our opinion issued, taking over all the assets, offices, personnel, and papers of the District,²³ which had continued in existence. A temporary board of directors appointed by the Legislature governed the Authority pending a November election.²⁴ The Authority's activities were widely reported in the media because of severe drought conditions existing in south central Texas,²⁵ diverse interests competing for permits,²⁶ and a lawsuit filed by the Sierra Club in June 1996 in the United States District Court for the Western District of Texas, seeking federal judicial management of the Edwards Aquifer to protect endangered species. On August 23, 1996, the federal court, convinced that it was facing an emergency, issued a preliminary injunction imposing a plan to manage the aquifer. The United States Court of Appeals for the Fifth Circuit stayed the injunction and later reversed it on the ground that the federal court should have abstained to allow the Authority, which was "in the process of taking comments and formulating rules for permits and emergency measures", time to function.²⁷

The EAAA directed the temporary board to "adopt rules governing the authority" "as soon as practicable."²⁸ On August 31, 1996, the Authority issued proposed rules to govern the process for filing a permit application, including a declaration of historical use.²⁹ The Authority set Saturday, December 28, 1996—six months from the date of our Barshop opinion—as the filing deadline.³⁰ In response to comments, the Authority moved the deadline to December 30, the following Monday.³¹ With few other changes, the Authority adopted the proposed rules on October 31, effective November 21, 1996.³² As the Authority explained, although the initial rules did not lay out a complete permitting process, the Authority proposed them because it "believed it needed to provide notice to existing users as early as possible that December 30, 1996 will be the deadline for filing declarations of historical use."³³ On November 1, 1996, the Authority proposed further rules governing the process for reviewing permit applications,³⁴ which did not become effective until February 18, 1997.³⁵

The Authority took steps to publicize the December 30 deadline as widely as possible. Respondent Chemical Lime, Ltd.'s predecessor in interest, APG Lime Corp., received a permit application form by mail mid-November, noticed the December 30 deadline prominently printed at the top of the form, and began gathering the historical data needed to submit it. APG's New Braunfels plant had been in operation since 1907, using limestone, water, and heat to manufacture lime used in purifying water and controlling sulphur emissions from coal-fired plants. For twenty-five years, the plant had used on average some 600 acre-feet—around 200 million gallons—of water a year.³⁶ APG's plant engineer, James Johnson, undertook to complete the permit application for the Authority but had trouble finding water usage data going back to 1972. In mid-December he telephoned the Authority to ask whether he could estimate water usage and was told he needed hard data. A few days before the deadline, he telephoned the Authority again to say that he would not be able to gather all the historical information in time. He was told that others were having...