League of United Latin Am. Citizens v. Edwards Aquifer Auth., 18-50655
| Decision Date | 28 August 2019 |
| Docket Number | No. 18-50655,18-50655 |
| Citation | 937 F.3d 457 |
| Parties | LEAGUE OF UNITED LATIN AMERICAN CITIZENS, (LULAC); Maria Martinez; Jesse Alaniz, Jr.; Ramiro Nava, Plaintiffs–Appellants, v. EDWARDS AQUIFER AUTHORITY, Defendant–Appellee, City of San Marcos; City of Uvalde; Uvalde County; New Braunfels Utilities, also known as NBU; Guadalupe-Blanco River Authority, Intervenor Defendants–Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Chad Wilson Dunn, Esq., Brazil & Dunn, Austin, TX, Jaclyn Maffetore, Allison Jean Riggs, Senior Attorney, Southern Coalition for Social Justice, Durham, NC, Luis Roberto Vera, Jr., Esq., Law Offices of Luis Roberto Vera, Jr. & Associates, San Antonio, TX, for Plaintiffs–Appellants.
Deborah Clarke Trejo, Assistant General Counsel, Kemp Smith, L.L.P., Austin, TX, Mark Norman Osborn, Esq., Ken Kelly Slavin, Kemp Smith, L.L.P., El Paso, TX, for Defendant–Appellee.
Michael John Cosentino, City of San Marcos, San Marcos, TX, for Intervenor Defendant-Appellee City of San Marcos.
William Michael McKamie, Esq., Taylor Olson Adkins Sralla & Elam, L.L.P., San Antonio, TX, for Intervenor Defendants-Appellees City of Uvalde, Uvalde County.
Mark J. Cannan, Esq., Clemens & Spencer, San Antonio, TX, Intervenor Defendant-Appellee New Braunfels Utilities, also known as NBU.
Aaron Michael Streett, Alexander Ross Hernandez, Baker Botts, L.L.P., Litigation, Houston, TX, Molly Jan Cagle, Esq., Baker Botts, L.L.P., Austin, TX, for Intervenor Defendant-Appellee Guadalupe-Blanco River Authority.
Joshua Daniel Katz, Claude Robert Heath, Bickerstaff, Heath, Delgado & Acosta, L.L.P., Austin, TX, for Amicus Curiae.
Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
The Edwards Aquifer Authority ("EAA") is a conservation and reclamation district established to regulate the groundwater of the Edwards Aquifer for the benefit of dependent users and species. The League of United Latin American Citizens and its Bexar County members Maria Martinez, Jesse Alaniz, Jr., and Ramiro Nava (collectively, "LULAC") sued the EAA, asserting that its electoral scheme violated the "one person, one vote" principle of the Equal Protection Clause of the Fourteenth Amendment. Claiming to be a special-purpose unit of government, the EAA countered that it was exempt from such strictures. The district court granted summary judgment for the EAA, finding that its limited functions disproportionately impact those most empowered in its elections and that its apportionment scheme has a rational basis. We agree and affirm.
The Edwards Aquifer "is a unique underground system of water-bearing formations." Barshop v. Medina Cty. Underground Water Conservation Dist. , 925 S.W.2d 618, 623 (Tex. 1996). Water enters the aquifer as rainfall and surface water and exits through well-withdrawals and spring discharges. Id. As "the primary source of water for south central Texas," it is "vital to the residents, industry, and ecology of the region, the State’s economy, and the public welfare." Edwards Aquifer Auth. v. Chem. Lime, Ltd. , 291 S.W.3d 392, 394 (Tex. 2009).
During the 1980s, overdrafting of the aquifer threatened various species that "rel[ied] upon adequate and continuous natural flows of fresh water ... as an environment for their survival." Sierra Club v. Lujan , No. MO-91-CA-069, 1993 WL 151353, at *5 (W.D. Tex. Feb. 1, 1993). At the time, the Edwards Underground Water District ("EUWD") administered the aquifer. But it ultimately "lacked the regulatory authority the Legislature came to believe was essential." Chem. Lime , 291 S.W.3d at 394. Responding to successful litigation under the Endangered Species Act of 1973, the Texas legislature replaced the EUWD with the EAA in 1993, vesting it with "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.’ "1
Under the Edwards Aquifer Authority Act,2 the EAA possesses "all of the powers, rights, and privileges necessary to manage, conserve, preserve, and protect the aquifer and to increase the recharge of, and prevent the waste or pollution of water in, the aquifer." Act § 1.08(a). Those powers include the ability to hire employees; enter contracts; issue grants or loans for water conservation and reuse; finance, construct, and operate dams and reservoirs; assert the power of eminent domain; and otherwise adopt and enforce rules necessary to execute its functions. See id. § 1.11.
The Act prohibits the withdrawal of aquifer water without a permit, limits the annual amount of permitted withdrawals, "and gives preference to ‘existing user[s]’ ... who ‘withdr[ew] and beneficially used underground water from the aquifer on or before June 1, 1993.’ " Chem. Lime , 291 S.W.3d at 394–95 (quoting Act § 1.03(10)); see also Act §§ 1.14(c), 1.15. An existing user who submits "a declaration of historical use of underground water," pays an application fee, and "establishes by convincing evidence beneficial use of" aquifer water is entitled to a permit.3 Subject to the annual cap on withdrawals, the EAA may grant "additional regular permits" after processing existing users’ applications. Act § 1.18(a). Currently, there are fewer than two thousand active permit holders.
Permit holders "may not violate the terms or conditions of the permit" or use aquifer water outside the boundaries of the EAA. Id. §§ 1.34(a), 1.35(b). They must meter their water usage, avoid waste, and implement conservation plans approved by the EAA.4 During a drought, the EAA may impose "utility pricing ... to limit discretionary use by the customers of water utilities" and require further "reduction of nondiscretionary use by permitted or contractual users." Act § 1.26(a)(3)–(4).
The EAA has adopted rules to preserve the quality of water in the aquifer. Specifically, the EAA regulates the construction, operation, and maintenance of wells that draw from the aquifer or are drilled through it. See EAA Rules §§ 713.200–203. The rest of its regulations, however, are limited to the recharge5 and contributing zones,6 where pollutants are most likely to seep into the aquifer. Within those regions, the EAA mandates the reporting of noxious spills and regulates facilities housing toxic substances for commercial use. Id. §§ 713.400–401, 713.501. It further governs the storage of hazardous substances in large aboveground and underground storage tanks in the recharge zone. Id. § 713.603. And it proscribes the use of coal tar-based pavement sealant products in the parts of Comal and Hays Counties that overlie the recharge and contributing zones. Id. § 713.703.
To ensure compliance with the Act and its regulations, EAA employees "may enter private or public property at any reasonable time," provided they "observe the establishment’s rules concerning safety, internal security, and fire protection[;] ... notify any occupant of their presence[;] and present proper identification." Id. § 717.104. If a violation has occurred, the EAA may suspend a permit, assess an administrative penalty, or sue for an injunction or civil penalty. Act §§ 1.36–1.38, 1.40.
The Act explicitly prohibits the EAA from levying a property tax to finance its operations. Id. § 1.28(a). With the approval of the state attorney general and the Texas Commission on Environmental Quality ("TCEQ"), however, the EAA may issue revenue bonds for the purchase of land or necessary equipment. Id. § 1.28(b)–(c). Moreover, it may "assess equitable aquifer management fees based on aquifer use." Id. § 1.29(b). Alternatively, other water districts located within its boundaries may contract with the EAA to pay its expenses through taxes collected from water users in those districts. Id. But in any case, the EAA may not charge "more than is reasonably necessary for [its] administration." Id.
The EAA’s jurisdiction covers eight counties representing three distinct regions: (1) the western agricultural counties of Atascosa, Medina, and Uvalde, where approximately 117,000 persons dwell; (2) the eastern spring-flow counties of Caldwell, Comal, Guadalupe, and Hays, where roughly 435,000 people live; and (3) the urban county of Bexar, which has over 1.7 million residents. Initially, the Act provided that each region would appoint three members to the EAA board of directors. See Act of May 30, 1993, 73d Leg., R.S., ch. 626, § 1.09, 1993 Tex. Gen. Laws 2350, 2356–57. But the Department of Justice ("DOJ") denied preclearance under § 5 of the Voting Rights Act of 1965 "due to the appointment method of selecting the board of directors." Barshop , 925 S.W.2d at 625. In consultation with the DOJ, the Texas legislature amended the Act in 1995 to establish a board of directors comprised of fifteen popularly elected members and two appointed non-voting members. Act § 1.09. Under the current scheme, the agricultural and spring-flow counties elect four directors each, whereas Bexar County elects seven directors. Id. § 1.093.
LULAC sued the EAA in 2012, claiming, inter alia , that its electoral system contravened the principle of "one person, one vote." Conceding that its electoral districts were malapportioned, the EAA rejoined that, as a special-purpose district, it was exempt from the "one person, one vote" requirement. The San Antonio Water System filed a complaint as plaintiff-intervenor, and the City of San Marcos, the City of Uvalde, Uvalde County, New Braunfels Utilities, and the Guadalupe-Blanco River Authority intervened as defendants. Both sides moved for summary judgment.
The district court denied LULAC’s motion and granted summary judgment for the EAA, noting that its "power and authority [wa]s limited to carrying out its narrowly defined statutory purposes to manage, protect, preserve, and conserve the water in the aquifer." Given that the per capita usage of aquifer water was significantly higher in the agricultural and spring-flow...
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