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Aquifer District joins court fight over collecting fees

Monday, October 27, 2008 by Jacob Cottingham

The Barton Spring Edwards Aquifer Conservation District Board voted unanimously last week to pledge $500 and support to the Texas Alliance of Groundwater Districts in a case that pits the authority of groundwater districts against the sovereign immunity claimed by cities.

 

On the surface, the case is about whether groundwater conservation districts retain the authority to extract penalties from municipalities. But groundwater districts (GCDs) fear that any erosion of their authority to exact late fees could lead to a diminution of their rule-making authority.

 

Rolling Plains GCD sued Aspermont for statutory authorized fees and late payments. In May, Rolling Plains GCD v. City of Aspermont went before an appellate court. The city, claiming sovereign immunity, won the case.   

 

“I think certainly Texas Alliance of Groundwater Districts and the GCDs were really surprised that the City of Aspermont actually prevailed in this case through the appeals court,” said Kirk Holland, general manager of the BSEACD.

 

Rolling Plains GCD covers Baylor, Haskell and Knox counties. The city of Aspermont had been delinquent on its payments as a permittee in the GCD. When they refused to pay fees for water it transported out of the water district the GCD began tacking late payments and other costs onto the bill as it continued to try to collect.

 

Holland said the effect of this case “would make these sorts of political subdivisions provided immunity with respect to collection actions from any entity, including groundwater conservation districts for which they are permittees.” He also said that “potentially, compliance with TCEQ regulations,” could be jeopardized.

 

Rolling Plains filed a petition for review at the Texas Supreme Court and the court ordered the city to respond by Oct. 13. Now that the city has filed its response, Rolling Plains has two weeks to submit its own brief.

 

The TAGD is asking its member GCDs for money and support to help prepare a reply letter brief in support of Rolling Plains request to review. The money would go toward preparing the letter brief, which would cost $5,000.

 

“I think that this is a very high priority among all the groundwater conservation districts and all government entities. Otherwise it would greatly impede our district’s ability to regulate and enforce against those permittees who are municipalities or other governmental entities such as school districts,” Holland said. Currently 71 percent of the BSEACD authorized water use comes from such entities. “It’s pretty significant,” reiterated Holland.

 

He requested “the ability to provide up to $500 in financial support and authority to support and have us be one of the main participants in requesting that reply brief.” Monique Norman is preparing the letter brief and Holland, who is the secretary for the TAGD, said she is “very knowledgeable about these issues.” The letter would serve as an indication of the full statewide membership of GCDs.

 

Pct. 1 Director Mary Stone wanted to insure that if more money was needed for the briefing that another $500 could be given. Holland assured her that as General Manager he would have the discretion to give more.

 

The Supreme Court can now accept the petition filed by Rolling Plains, deny it or request a full briefing without granting the petition. The background briefing on this case provided by the BSEACD also says that should a Supreme Court decision leave the issue unresolved that a legislative solution could still be found.

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