Minimal groundwater legislation to pass during legislative session

By Victoria Whitehead, HPWD General Counsel

As this issue of The Cross Section is emailed, the 86th Texas Legislature prepares to adjourn "sine die" on May 27.

HPWD tracked more than 100 bills this legislative session.  With just a few days remaining in the regular session, it appears the following bills are still moving forward:  

-          Aquifer Storage & Recovery: Permitting Process, Financial Incentives, & TWDB Studies (HB 720, HB 721, HB 1052, HB 726, SB 1041, & HB 1594)

-          Brackish Groundwater Permitting (HB 722)

-          Creation of an Interregional Planning Council for Regional Water Planning Groups (HB 807)

-          Government Transparency: Open Meetings & Fiscal Transparency (HB 305)

-          Property Tax: Rollback Rates & Appraisal Process (HB 2 & SB 2)

Bills that didn’t quite make it past the finish line:

-          Similar Rules within a Groundwater Management Area (SB 1010)

-          Attorney’s fees for landowners when a GCD is a party (HB 2125 & SB 851)

-          Permitting for rural water utility providers (HB 2122 & HB 2249)

-          Efforts under Chapter 36 to ensure GCD rules are science based and effectively protect private property rights.  (HB 2123 & SB 2026)

Good News: Very few pieces of legislation will pass.  Bad News: Many topics of importance to the legislature went unresolved and will likely emerge again next session.  The legislative session ends on Monday, May 27th. 

An overview of the 86th Texas Legislative Session will be presented to the HPWD Board of Directors at their June 11 meeting in Lubbock.

Legislative Update: HPWD offers testimony regarding legislation

By Victoria Whitehead, HPWD General Counsel

Attorney’s Fees Legislation

Under current statute, a judge is required to award attorney’s fees to a groundwater conservation district (GCD) when a GCD prevails in litigation.  This stands for both general litigation involving a GCD, as well as GCD enforcement actions.  There are no other provisions under Chapter 36, Texas Water Code, for any other party to  recover their attorney’s fees.  

This month, HPWD offered support for two bills that address this inequity:

House Bill 2125 by Representative Burns removes the court’s requirement to grant attorney’s fees to a GCD, and instead makes the award of attorney’s fees discretionary.  While the original legislation had a cap set at $100,000, the Committee Substitute introduced April 2nd, removes the cap.   HB 2125 does not alter the award of attorney’s fees for enforcement actions. 

Senate Bill 851 by Senator Perry would change the current process to allow the prevailing side to seek attorney’s fees from the court.  It further states that the court may grant reasonable and necessary attorney’s fees in an amount that the court considers is equitable and just, but not to exceed $250,000.  For enforcement actions involving a GCD, SB 851 allows the prevailing side to recover attorney’s fees, but does not include a $250,000 cap.   

While many GCDs in the state do not support these efforts, the HPWD Board of Directors firmly believe this legislation is a good balance for all parties, as it removes some barriers that landowners may encounter when they believe a GCD is not adequately protecting their groundwater.

HPWD provided testimony on SB 851.  The testimony provided by General Counsel Victoria Whitehead can be found at 02:10:50: http://tlcsenate.granicus.com/MediaPlayer.php?view_id=45&clip_id=14092

Appeals Process Legislation

HPWD offered testimony in opposition to Senator Perry’s Senate Bill 2027.  SB 2027 changes the judicial review process of decisions made by a GCD board from substantial evidence review to trial de novo.

Testimony from HPWD focused on the adequacy of current law for contested matters.  The rights of petitioners are well documented in the existing statute, and also allow for the expertise of the locally elected board members.

Senator Perry concluded the hearing by agreeing to push the matter to an interim discussion rather than pursuing the legislative change. 

The testimony provided by General Counsel Victoria Whitehead can be found at 02:01:00: http://tlcsenate.granicus.com/MediaPlayer.php?view_id=45&clip_id=14250

Legislative Update: HB 2125 & SB 851 testimony

By Victoria Whitehead, HPWD General Counsel

Under current statute, a judge is required to award attorney’s fees to a groundwater conservation district (GCD) when a GCD prevails in litigation.  This stands for both general litigation involving a GCD, as well as GCD enforcement actions.  There are no other provisions under Chapter 36, Texas Water Code, for any other party to recover their attorney’s fees.   

 This week, HPWD offered support for two bills that address this inequity:

  • House Bill 2125 by Representative Burns removes the court’s requirement to grant attorney’s fees to a GCD, and instead makes the award of attorney’s fees discretionary.  While the original legislation had a cap set at $100,000, the Committee Substitute introduced April 2nd, removes the cap.   HB 2125 does not alter the award of attorney’s fees for enforcement actions.

  • Senate Bill 851 by Senator Perry would change the current process and allow the prevailing side to seek attorney’s fees from the court.  It further states that the court may grant reasonable and necessary attorney’s fees in an amount that the court considers is equitable and just, but not to exceed $250,000.  For enforcement actions involving a GCD, SB 851 allows the prevailing side to recover attorney’s fees, but does not include a $250,000 cap.

While many GCDs in the state do not support these efforts, the HPWD Board of Directors firmly believe this legislation is a good balance for all parties, as it removes some barriers  that landowners may  encounter when they believe a GCD is not adequately protecting their groundwater. 

 HPWD provided testimony on SB 851.  The testimony given by General Counsel Victoria Whitehead can be found at 02:10:50: http://tlcsenate.granicus.com/MediaPlayer.php?view_id=45&clip_id=14092

Few groundwater bills filed this session

By Victoria Whitehead, HPWD General Counsel

With the March 9 bill filing deadline behind us, we are officially in the heat of legislative session.

More than 7,000 pieces of legislation have been filed.

The most popular subjects include public education, property tax system, and recovery efforts after Hurricane Harvey.

With such a strong emphasis on flooding and surface water issues, a less than normal amount of groundwater legislation was ultimately filed.

The hot topics in groundwater policy include:

Brackish Groundwater Development & Permitting

Following the passage of House Bill 30 (84R), the Texas Water Development Board has been researching and identifying Brackish Groundwater Production Zones.

Legislation filed this session seeks to mandate a new permitting process for access to brackish groundwater within the Brackish Groundwater Production Zones.

In the HPWD service area, the Dockum Aquifer is currently being studied for Brackish Groundwater Production Zones.

Depending on the legislature’s continued funding of the study, the Texas Water Development Board is expected to complete the Dockum study in two to five years.

Attorney’s Fees In GCD Litigation

Under current law, if a groundwater conservation district prevails in a lawsuit, the district may seek and the court shall grant payment of the district’s attorney’s fees and court costs.

Multiple pieces of legislation were filed to try and make attorney’s fees for the district permissive, or allow the prevailing party (on either side of the litigation) the opportunity to be reimbursed for their fees.

Every bill filed that addresses attorney’s fees legislation also places a cap on the amount of attorney’s fees a court may grant.

GCD Permitting Processes

The filed GCD permitting legislation this session seeks to continue the discussion of “similar rules” over a common aquifer, and whether or not GCDs are still the preferred method for managing groundwater in the State of Texas.

Generally speaking, the legislation filed seeks to ensure that groundwater conservation districts, through their local permitting processes, are efficiently balancing groundwater private property rights with conservation.

The next phase of the legislative session will predominately focus on committee hearings.

New Speaker, committee assignments at start of 86th Texas Legislature

By Victoria Whitehead, HPWD General Counsel

 The 86th Texas Legislature convened in regular session on Jan. 8 in Austin.  Rep. Dennis Bonnen (R-Angleton) was elected Speaker of the House of Representatives. In recent weeks, both Speaker Bonnen and Lt. Gov. Dan Patrick announced the membership of the House and Senate standing committees.

 House Committee Assignments

Speaker Bonnen selected Representative Lyle Larson (R-San Antonio) to chair the House Natural Resources Committee once again.  Speaker Bonnen also appointed Rep. Will Metcalf (R- Conroe) to serve as Vice Chairman.  Rep. Walter “Four” Price (R-Amarillo) was reappointed to the committee.

 Follow this link for other House Natural Resources Committee members.

 Follow this link for an entire list of House Standing Committees and members.

 Senate Water and Rural Affairs Committee:

Lt. Governor Patrick made some structural changes to the standing Senate Committees by splitting the Agriculture, Water, & Rural Affairs into two committees: 1) the Committee on Agriculture and 2) the Committee on Water & Rural Affairs.  State Senator Charles Perry (R-Lubbock) maintained his Chairmanship of the Water & Rural Affairs Committee. 

 In a statement on his social media, Chairman Perry said, “I am looking forward to fight for West Texas this legislative session. I believe serving on these committees will give West Texas a strong voice as we look to keep Texas the best state in the nation to live, work, and raise a family. I want to thank Lt. Gov. Dan Patrick for trusting me with these important committee assignments.” 

 Follow this link for other Senate Committee on Water & Rural Affairs members.

 Follow this link for an entire list of Senate Standing Committees and members.

 HPWD will provide legislative updates in the electronic and print versions of The Cross Section throughout the session.

Victoria Whitehead promoted to HPWD General Counsel

Victoria Whitehead has been promoted to General Counsel for the High Plains Underground Water Conservation District (HPWD) in Lubbock.  She previously served as HPWD Governmental Affairs Director.
 
In addition to some of her previous duties, she will now oversee all groundwater law and policy issues, grant funding acquisitions, HPWD election administration, state and federal compliance, and district representation for other legal matters. 
 
She will represent the district at various association meetings, groundwater planning meetings, and at committee hearings during the upcoming 86th Texas Legislature.
 
“We are fortunate to have Victoria as part of the HPWD team. Her training and skills are a valuable asset to the district.  It is nice to have someone with a local background that understands the issues of this region,” said General Manager Jason Coleman.
  
Whitehead grew up in the Panhandle, and received her bachelor’s degree in political science and her Juris Doctorate degree from Texas Tech University.
 
She previously worked in the General Counsel’s office at Texas Tech University and for several legislators before joining the HPWD staff in 2016. These include Senator Robert Duncan of Lubbock, Representative Drew Darby of San Angelo, and U.S. Senator Kay Bailey Hutchison.
 
Some of her honors include the Texas Tech School of Law’s “Top Extern” award and the Capitol Crowd’s “House Intern Most Likely to be Running the Legislature in 10 years” recognition.  Gov. Greg Abbott appointed her to serve as a Student Regent for the Texas Tech University System Board of Regents for 2015-2016.