Texas Commission on Environmental Quality & Post Oak Clean Green, Inc. v. Guadalupe County Groundwater Conservation District ( 2015 )


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  •                                                                                       ACCEPTED
    04-15-00433-cv
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    9/17/2015 7:25:15 PM
    KEITH HOTTLE
    CLERK
    NO. 04-15-00433-CV
    FILED IN
    IN THE COURT OF APPEALS   4th COURT OF APPEALS
    FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
    SAN ANTONIO, TEXAS     09/17/2015 7:25:15 PM
    KEITH E. HOTTLE
    Clerk
    TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and
    POST OAK CLEAN GREEN, INC.,
    Appellants,
    v.
    GUADALUPE COUNTY GROUNDWATER
    CONSERVATION DISTRICT,
    Appellee.
    BRIEF OF APPELLANT POST OAK CLEAN GREEN, INC.
    Christopher L. Dodson                   John A. Riley
    State Bar No. 24050519                  State Bar No. 16927900
    chris.dodson@bgllp.com                  jriley@jgdpc.com
    Mark R. Wulfe                           JACKSON GILMOUR & DOBBS, PC
    State Bar No. 24088681                  1115 San Jacinto Blvd., Suite 275
    mark.wulfe@bgllp.com                    Austin, Texas 78701
    BRACEWELL & GIULIANI LLP                Telephone: (512) 574-8861
    711 Louisiana Street, Suite 2300        Facsimile: (512) 574-8861
    Houston, Texas 77002-2770
    Telephone: (713) 223-2300
    Facsimile: (713) 221-1212
    ATTORNEYS FOR APPELLANT POST OAK CLEAN GREEN, INC.
    ORAL ARGUMENT REQUESTED
    IDENTITIES OF PARTIES AND COUNSEL
    Defendants-Appellants
    Texas Commission on Environmental Quality (“Commission” or “TCEQ”)
    Post Oak Clean Green, Inc. (“Post Oak”)
    Counsel for the Commission
    Ken Paxton
    Charles E. Roy
    Scott A. Keller
    Bill Davis
    Nancy Elizabeth Olinger
    Cynthia Woelk
    OFFICE OF THE ATTORNEY GENERAL
    P.O. Box 12548 (MC 059)
    Austin, Texas 78711-2548
    Telephone: (512) 936-1896
    Facsimile: (512) 370-9191
    Counsel for Post Oak
    Christopher L. Dodson
    Mark R. Wulfe
    BRACEWELL & GIULIANI LLP
    711 Louisiana Street, Suite 2300
    Houston, Texas 77002-2770
    Telephone: (713) 223-2300
    Facsimile: (713) 221-1212
    John A. Riley
    JACKSON GILMOUR & DOBBS, PC
    1115 San Jacinto Blvd., Suite 275
    Austin, Texas 78701
    Telephone: (512) 574-8861
    Facsimile: (713) 355-5001
    -i-
    Trial Counsel for the Commission
    Mark L. Walters
    Nancy Elizabeth Olinger
    David Preister
    OFFICE OF THE ATTORNEY GENERAL OF TEXAS
    P.O. Box 12548, MC-066
    Austin, Texas 78711
    Telephone: (512) 463-2012
    Facsimile: (512) 320-0911
    Trial Counsel for Post Oak
    Peter J. Stanton
    LAW OFFICES OF PETER J. STANTON
    111 Soledad, Suite 1350, Riverview Towers
    San Antonio, Texas 782025
    Telephone: (210) 472-0500
    Facsimile: (210) 472-0515
    Christopher L. Dodson
    Robert D. Ayers
    Kelley L. Clark
    BRACEWELL & GIULIANI LLP
    711 Louisiana Street, Suite 2300
    Houston, Texas 77002-2770
    Telephone: (713) 223-2300
    Facsimile: (713) 221-1212
    John A. Riley
    JACKSON GILMOUR & DOBBS, PC
    1115 San Jacinto Blvd., Suite 275
    Austin, Texas 78701
    Telephone: (512) 574-8861
    Facsimile: (512) 574-8861
    -ii-
    Plaintiff-Appellee
    Guadalupe County Groundwater Conservation District (“District”)
    Counsel for the District
    Marisa Perales
    FREDERICK, PERALES, ALLMON & ROCKWELL, PC
    707 Rio Grande, Suite 200
    Austin, Texas 77552-6894
    Trial Counsel for the District
    Marisa Perales
    FREDERICK, PERALES, ALLMON & ROCKWELL, PC
    707 Rio Grande, Suite 200
    Austin, Texas 77552-6894
    -iii-
    TABLE OF CONTENTS
    Page
    IDENTITIES OF PARTIES AND COUNSEL ........................................................ i
    INDEX OF AUTHORITIES.................................................................................. vii
    RECORD REFERENCES ...................................................................................... xi
    STATEMENT OF THE CASE .............................................................................. xii
    STATEMENT REGARDING ORAL ARGUMENT .......................................... xiii
    ISSUES PRESENTED.......................................................................................... xiv
    INTRODUCTION ....................................................................................................1
    STATEMENT OF FACTS .......................................................................................1
    A.       Description Of The Parties And Statutory And Regulatory
    Background ..........................................................................................1
    1.       The Commission and its relevant authority ...............................1
    2.       The District and its relevant authority .......................................3
    3.       Post Oak .....................................................................................4
    B.       Post Oak’s Application To The Commission For A Municipal
    Solid Waste Permit ...............................................................................4
    C.       The Process For Permitting Municipal Solid Waste Facilities In
    Texas.....................................................................................................5
    D.       The District’s Ongoing Opposition To Post Oak’s Permit
    Before The Commission.......................................................................6
    E.       The District’s Efforts To Subvert The Commission’s Permitting
    Process Through The Trial Court Proceedings Below.........................7
    1.       The District’s claims ..................................................................7
    -iv-
    Page
    2.        The parties’ dispositive motions and the trial court’s
    rulings.........................................................................................9
    SUMMARY OF THE ARGUMENT .....................................................................10
    STANDARD OF REVIEW ....................................................................................11
    ARGUMENT ..........................................................................................................11
    I.       The Trial Court Lacks Subject Matter Jurisdiction Because The
    District’s Claim Is Not Ripe. ........................................................................11
    A.       The District’s claimed injury is impermissibly speculative. ..............12
    B.       Neither the trial court’s reasoning nor the District’s arguments
    below justify a contrary ruling. ..........................................................15
    II.      The Trial Court Lacks Subject Matter Jurisdiction Because the
    Commission Has Exclusive Jurisdiction Over The Siting Of
    Municipal Solid Waste Landfills. .................................................................17
    A.       The pervasive regulatory scheme indicates that the Legislature
    intended the Commission to have exclusive jurisdiction over
    the siting of municipal solid waste landfills.......................................18
    B.       Limited local authority over solid waste facilities does not
    defeat the Commission’s exclusive jurisdiction.................................22
    C.       The District’s proper recourse is clear: exhaust its
    administrative remedies......................................................................24
    III.     Alternatively, The Trial Court Lacks Subject Matter Jurisdiction Over
    The District’s Claim Because The Commission Has Primary
    Jurisdiction. ...................................................................................................25
    IV.      District Rule 8.1 Cannot Be Enforced Through the UDJA. .........................27
    PRAYER .................................................................................................................28
    CERTIFICATE OF SERVICE ...............................................................................29
    -v-
    Page
    CERTIFICATE OF COMPLIANCE ......................................................................30
    APPENDIX .............................................................................................................31
    -vi-
    INDEX OF AUTHORITIES
    Page(s)
    Cases
    Beacon Nat’l Ins. Co. v. Montemayor,
    
    86 S.W.3d 260
    (Tex. App.—Austin 2002, no pet.) ............................................26
    Bexar-Medina-Atascosa Counties Water Control & Improvement
    Dist. No. 1 v. Medina Lake Prot. Ass’n,
    
    640 S.W.2d 778
    (Tex. App.—San Antonio 1982, writ ref’d n.r.e.) ................... 12
    Blue Cross Blue Shield of Tex. v. Duenez,
    
    201 S.W.3d 674
    (Tex. 2006) ..............................................................................17
    Butnaru v. Ford Motor Co.,
    
    84 S.W.3d 198
    (Tex. 2002).................................................................................25
    Cash Am. Int’l, Inc. v. Bennett,
    
    35 S.W.3d 12
    (Tex. 2000)...................................................................................26
    City of Anson v. Harper,
    
    216 S.W.3d 384
    (Tex. App.—Eastland 2006, no pet.) .....................13, 14, 15, 16
    City of San Antonio v. Butler,
    
    131 S.W.3d 170
    (Tex. App.—San Antonio 2004, pet. denied)..........................11
    In re Entergy Corp.,
    
    142 S.W.3d 316
    (Tex. 2004) ..............................................................................17
    Foree v. Crown Cent. Petroleum Corp.,
    
    431 S.W.2d 312
    (Tex. 1968) ..............................................................................26
    Hardee v. City of San Antonio,
    No. 04-07-00740-CV, 
    2008 WL 2116251
    (Tex. App—San
    Antonio May 21, 2008, no pet.) (mem. op.) .......................................................12
    J.M. Huber Corp. v. Santa Fe Energy Res., Inc.,
    
    871 S.W.2d 842
    (Tex. App.—Houston [14th Dist.] 1994, writ denied) .............. 9
    Jordan v. Staff Water Supply Corp.,
    
    919 S.W.2d 833
    (Tex. App.—Eastland 1996, no writ) ......................................25
    -vii-
    Page(s)
    Key Western Life Ins. Co. v. State Bd. of Ins.,
    
    350 S.W.2d 839
    (Tex. 1961) ..............................................................................24
    Kinney v. Palmer,
    04-07-00091-CV, 
    2008 WL 2515696
    (Tex. App.—San Antonio
    June 25, 2008, no pet.) (mem. op.) ....................................................................... 9
    MacDonald, Sommer & Frates v. Yolo County,
    
    477 U.S. 340
    (1986) ............................................................................................15
    Mayhew v. Town of Sunnyvale,
    
    964 S.W.2d 922
    (Tex. 1998) ..............................................................................15
    McDaniel v. Tex. Natural Res. Conservation Comm’n,
    
    982 S.W.2d 650
    (Tex. App.—Austin 1998, pet. denied) ...................................20
    Monk v. Huston,
    
    340 F.3d 279
    (5th Cir. 2003) ............................................................13, 14, 15, 16
    Patterson v. Planned Parenthood of Houston & Se. Tex., Inc.,
    
    971 S.W.2d 439
    (Tex. 1998) ..............................................................................11
    Rawls v. Tex. Comm’n on Envtl. Quality,
    No. 11-05-00368CV, 
    2007 WL 1849096
    (Tex. App.—Eastland
    June 18, 2007, no pet.) ........................................................................................20
    Smith v. City of Brenham, Tex.,
    
    865 F.2d 662
    (5th Cir. 1989) ..................................................................14, 15, 16
    Smith v. Houston Chem. Servs., Inc.,
    
    872 S.W.2d 252
    (Tex. App.—Austin 1994, pet. withdrawn).............................19
    Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
    
    84 S.W.3d 212
    (Tex. 2002).................................................................................17
    In re Sw. Bell Tel. Co.,
    
    226 S.W.3d 400
    (Tex. 2007) (orig. proceeding) ................................................26
    Tex. Dept. of Pub. Safety v. Moore,
    
    985 S.W.2d 149
    (Tex. App.—Austin 1998, no pet.) ..........................................25
    -viii-
    Page(s)
    Tex. Natural Res. Conserv. Comm’n v. IT-Davy,
    
    74 S.W.3d 849
    (Tex. 2002).................................................................................11
    Tex. State Bd. of Veterinary Med. Examiners v. Giggleman,
    
    408 S.W.3d 696
    (Tex. App.—Austin 2013, no pet.) ..........................................27
    Thomas v. Long,
    
    207 S.W.3d 334
    (Tex. 2006) ..............................................................................17
    Waco Indep. Sch. Dist. v. Gibson,
    
    22 S.W.3d 849
    (Tex. 2000)...........................................................................12, 16
    Statutes
    TEX. ADMIN. CODE § 293 .........................................................................................21
    TEX. ADMIN. CODE § 330 .............................................................................2, 5, 6, 19
    TEX. CIV. PRAC. & REM. CODE § 37 .................................................................. xii, 27
    TEX. CIV. PRAC. & REM. CODE § 51 .................................................................. xii, 10
    TEX. HEALTH & SAFETY CODE § 361 .........................................................2, 5, 19, 26
    TEX. HEALTH & SAFETY CODE § 363 .......................................................5, 20, 22, 23
    TEX. HEALTH & SAFETY CODE § 364 .......................................................................22
    TEX. SPEC. DIST. CODE § 8833 ...................................................................................3
    TEX. WATER CODE § 5 ............................................................................................1, 6
    TEX. WATER CODE § 26 .......................................................................................2, 20
    TEX. WATER CODE § 36 ...................................................................................3, 4, 21
    -ix-
    Page(s)
    Other Authorities
    GUADALUPE COUNTY GROUNDWATER CONSERVATION DISTRICT,
    About Us, available at http://gcgcd.org/about.html .......................................7, 21
    Guadalupe County Groundwater Conservation District, GUADALUPE
    COUNTY GROUNDWATER CONSERVATION DISTRICT
    (Nov. 10, 2011), available at
    http://gcgcd.org/uploads/3/4/6/6/3466695/gcgcd_rules.pdf ................................. 8
    -x-
    RECORD REFERENCES
    In this brief, “CR” refers to the clerk’s record and “1RR” to the reporter’s
    record of the November 4, 2014 hearing.
    -xi-
    STATEMENT OF THE CASE
    Nature of the case      This is an interlocutory appeal of the trial court’s denial
    of the Commission’s plea to the jurisdiction. See TEX.
    CIV. PRAC. & REM. CODE § 51.014(a)(8) (West 2015). It
    centers on the scope of authority of the Commission and
    the District, respectively, concerning the siting of Post
    Oak’s proposed municipal solid waste landfill. The
    proposed landfill is the subject of an ongoing multi-year
    permit application process before the Commission, and
    the Commission’s decision regarding Post Oak’s
    application for a permit is pending. The District filed
    this lawsuit seeking a declaration that the District’s
    administrative Rule 8.1, prohibiting the application of
    waste and sludge over an aquifer outcrop, prevents the
    construction and operation of Post Oak’s proposed
    landfill, regardless of the outcome of the Commission’s
    permitting process.
    Trial Court             2nd 25th District Court of Guadalupe County, Texas,
    Hon. W.C. Kirkendall
    Course of Proceedings   The District sued Post Oak under the Uniform
    & Dispositions Below    Declaratory Judgments Act (“UDJA”), TEX. CIV. PRAC.
    & REM. CODE ch. 37, seeking a declaration that Post
    Oak had violated District Rule 8.1 in connection with its
    pending application for a permit from the Commission
    for a landfill that, if issued, would be located within the
    District’s territory. CR.1193-1204 (live petition). Post
    Oak filed a plea to the jurisdiction, CR.15-23, and the
    District moved for partial summary judgment, CR.25-
    156; 552-765. The trial court denied Post Oak’s
    jurisdictional plea. CR.548-51. The Commission then
    intervened, CR.1045-48, and filed its own plea to the
    jurisdiction, CR.1081-1132. The trial court denied the
    Commission’s plea, CR.1218, and granted the District’s
    motion for partial summary judgment, CR.1179-92.
    Post Oak and the Commission each timely appealed the
    denial of the Commission’s plea. CR.1223-25, 1228-31.
    -xii-
    STATEMENT REGARDING ORAL ARGUMENT
    This appeal involves multiple jurisdictional grounds for dismissal.
    Accordingly, Post Oak believes oral argument is likely to be helpful to the Court’s
    resolution of the appeal.
    -xiii-
    ISSUES PRESENTED
    1. Did the trial court err in denying the Commission’s plea to the jurisdiction
    because the District’s claim is not ripe?
    2. Did the trial court err in denying the Commission’s plea to the jurisdiction
    because the Commission has exclusive (or, alternatively, primary) jurisdiction
    over the siting of municipal solid waste landfills?
    3. Did the trial court err in denying the Commission’s plea to the jurisdiction
    because the District’s Rule 8.1 cannot be enforced through the UDJA?
    -xiv-
    INTRODUCTION
    In this declaratory-judgment action, the District seeks to frustrate Post Oak’s
    application for a permit to construct and operate a landfill currently pending with
    the Commission. During the nearly four years that Post Oak’s application has been
    under review, the District has actively participated in the process, opposing the
    application before the Commission. Such involvement is contemplated by the
    regulatory scheme, which invites input from interested parties regarding permit
    applications.        This lawsuit, on the other hand, is nothing more than an
    impermissible bid to subvert the regulatory process before it is complete. The
    District’s attempt is both premature, as its claim is not ripe, and impermissible, as
    it asks this court to invade the exclusive jurisdiction given to the Commission by
    the Texas Legislature regarding the siting of municipal solid waste landfills.
    Accordingly, the Court should reverse the trial court’s order denying the
    Commission’s plea to the jurisdiction and render a judgment of dismissal.
    STATEMENT OF FACTS
    A.        Description Of The Parties And Statutory And Regulatory
    Background
    1.     The Commission and its relevant authority
    The Commission is the state agency “given primary responsibility for
    implementing the constitution and laws of this state relating to the conservation of
    natural resources and the protection of the environment.” TEX. WATER CODE §
    5.012. (West 2015). Consequently, it is the “principal authority in the state on
    matters relating to the quality of the water in the state.” 
    Id. § 26.127(a).
    “All other
    state agencies engaged in water quality or water pollution control activities [must]
    coordinate those activities with the [C]ommission.” 
    Id. The Commission
    is also charged with the “management of municipal solid
    waste.” TEX. HEALTH & SAFETY CODE § 361.011(a) (West 2015). Pursuant to the
    Solid Waste Disposal Act (“Act” or “SWDA”), the Commission “shall coordinate
    municipal solid waste activities, . . . controlling all aspects of the management of
    municipal solid waste . . . by all practical and economically feasible methods
    consistent with its powers and duties under [the Act] and other law.”            
    Id. § 361.011(a)-(b).
    One such method is the issuance of permits for the construction,
    operation, and maintenance of municipal solid waste landfills. 
    Id. § 361.061.
    In discharging its responsibilities under the SWDA, the Commission
    exercises its authority over water quality in the state. The Act provides that “[i]n
    matters relating to municipal solid waste management . . . the [C]ommission “shall
    consider water pollution control and water quality aspects.” 
    Id. § 361.011(d).
    The
    Commission fulfills this responsibility in part by requiring information relating to
    groundwater protection to be included in applications for municipal solid waste
    landfill permits, as well as by providing for the monitoring of groundwater once
    landfills are operational. See, e.g., 30 TEX. ADMIN. CODE §§ 330.61(c), (d), (j), (k)
    -2-
    (application requirements); 330.63(f), 330.401(a), (b), (e), (f) (monitoring
    requirements).
    2.    The District and its relevant authority
    Another means available to the Commission in carrying out its
    responsibilities is the creation and supervision of groundwater conservation
    districts.   TEX. WATER CODE § 36.011.           The Commission “has exclusive
    jurisdiction over the creation of [such] districts” and, under certain circumstances,
    may direct their activities or dissolve them. 
    Id. §§ 36.011(b),
    36.303(a).
    The District is one such groundwater conservation district. See TEX. SPEC.
    DIST. CODE § 8833.002 (2013). It “has the rights, powers, privileges, functions,
    and duties provided by the general law of this state, including Chapters 36 and 49
    [of the Texas] Water Code,” applicable to groundwater conservation districts, with
    the exception that it may not impose taxes or certain fees. 
    Id. §§ 8833.101,
    8833.102.
    Through Chapter 36 of the Texas Water Code, groundwater conservation
    districts are delegated the authority to manage and control groundwater production
    and may do so by regulating the spacing of water wells” and “the production from
    water wells.” TEX. WATER CODE § 36.001(1). Districts exercise this authority
    through rulemaking and permitting. A district “shall require a permit for the
    drilling, equipping, operating, or completing of wells or for substantially altering
    -3-
    the size of wells or well pumps.” 
    Id. § 36.113(a).
    Additionally, a district may
    regulate the spacing of water wells and the production of groundwater “[i]n order
    to minimize as far as practicable the drawdown of the water table or the reduction
    of artesian pressure, to control subsidence, to prevent interference between wells,
    to prevent degradation of water quality, or to prevent waste.” 
    Id. § 36.116.
    More
    generally, a district
    may make and enforce rules, including rules limiting groundwater
    production based on tract size or the spacing of wells, to provide for
    conserving, preserving, protecting, and recharging of the groundwater
    or of a groundwater reservoir or its subdivisions in order to control
    subsidence, prevent degradation of water quality, or prevent waste of
    groundwater and to carry out the powers and duties provided by
    [Chapter 36].
    
    Id. § 36.101(a).
    3.        Post Oak
    Post Oak is a closely held private corporation that has pending with the
    Commission an application for a permit to construct and operate a municipal solid
    waste landfill on private land within the District’s territory.
    B.     Post Oak’s Application To The Commission For A Municipal Solid
    Waste Permit
    In December 2011, approximately two and half years before the District
    brought this suit, Post Oak applied for a municipal solid waste landfill permit from
    the Commission. CR.605-765. Pursuant to the requirements of the SWDA, Post
    Oak submitted detailed information to the Commission regarding the geology of
    -4-
    the site, groundwater, floodplains and wetlands on the site, and land uses of the
    surround area, among other site-specific information.      
    Id. The administrative
    review process before the Commission regarding Post Oak’s permit application is
    ongoing, now having lasted almost four years. CR.1206-07.
    C.    The Process For Permitting Municipal Solid Waste Facilities In
    Texas
    As authorized by the Legislature, the Commission’s municipal solid waste
    permitting process is comprehensive, implicating numerous specific regulations
    and statutory provisions. The SWDA and regulations promulgated under it govern
    this process.    TEX. HEALTH & SAFETY CODE §§ 361.001 et. seq.                  The
    Commission’s permitting and related requirements are found in sections 330.1-
    330.1221 of Title 30 of the Texas Administrative Code. Specific law regarding
    local governmental entity regulation of municipal solid waste facilities in Texas is
    found in the Comprehensive Municipal Solid Waste Management, Resource
    Recovery, and Conservation Act (“Comprehensive Act”). TEX. HEALTH & SAFETY
    CODE §§ 363.001 et seq.
    The review process for Post Oak’s permit application (“Application”)
    involves a technical review of the Application conducted by the Commission,
    requests for additional clarifying materials and information from Post Oak,
    Commission-led public meetings where comments on the Application from
    members of the community are solicited and received, the Commission’s review of
    -5-
    and responses to public comments, and a contested case hearing that is presently
    pending before the State Office of Administrative Hearings. 30 Tex. Admin. Code
    §§ 330.1-330.1221; CR.1206-07.
    The final agency decision on the Application will be made only after a
    contested case hearing process, which involves a full evidentiary hearing on the
    merits of the Application before an Administrative Law Judge, who will then make
    a detailed recommendation on the matter to the Commission. See generally TEX.
    WATER CODE ch. 5.
    D.     The District’s Ongoing Opposition To Post Oak’s Permit Before The
    Commission
    The District is actively participating in the permitting process at the State
    Office of Administrative Hearings and the Commission. Two years before it
    brought this lawsuit, the District commented to the Commission that the proposed
    municipal solid waste facility presented risks of contamination of the Carrizo and
    Wilcox aquifers, Nash Creek, and the Guadalupe River.             CR.59-64.    At a
    Commission-led public meeting in March 2014, a month before this suit was filed,
    the District continued its participation, advocating that Post Oak should not be able
    to site the municipal solid waste facility on top of what the District asserts is the
    -6-
    “outcrop of the upper Wilcox [aquifer].” 1 CR. 1200. This suit centers on the same
    issues the District has raised with the Commission through the permitting process,
    generally the suitability of the proposed landfill site. The District has warned that
    it “intends to participate in any contested case hearing to ensure that the
    appropriate science is brought to the attention to the Administrative Law Judge and
    [the Commission].” CR.1107.
    E.     The District’s Efforts To Subvert The Commission’s Permitting
    Process Through The Trial Court Proceedings Below
    1.    The District’s claims
    Approximately two and a half years after the Commission’s permitting
    process began, the District filed this lawsuit, asserting that District Rule 8.1
    prohibits the construction of municipal solid waste facilities at the proposed site.
    CR.4-14. In other words, the District seeks to deny Post Oak the ability to use a
    permit issued by the Commission, should one eventually be granted.
    District Rule 8.1, which is captioned “Solid, Hazardous or Radioactive
    Wastes,” provides as follows:
    All persons generating, transporting, disposing, applying, or otherwise
    managing substances defined under state or federal law as solid,
    1
    The outcrop of the Wilcox aquifer is a miles-wide band that stretches from
    Laredo to Texarkana. The outcrop effectively covers the entire jurisdiction of the
    District. See GUADALUPE COUNTY GROUNDWATER CONSERVATION DISTRICT,
    About Us (last two maps on page), available at http://gcgcd.org/about.html.
    -7-
    hazardous, or radioactive waste, or as sludge, must follow any and all
    applicable federal, state, and local environmental statutes,
    requirements, and regulations, including, but not limited to those
    imposed under the Solid Waste Disposal Act (RCRA), the Public
    Health Service Act (the Safe Drinking Water Act), the Federal Water
    Pollution Control Act (the Clean Water Act), the National
    Environmental Policy Act, the Atomic Energy Act and the Low-Level
    Radioactive Waste Policy Act, as those statues, requirements or
    regulations are administered by the appropriate agency, including but
    not limited to the Texas Railroad Commission, the Texas Commission
    on Environmental Quality, the Texas Department of Health, or their
    successors, and the Environmental Protection Agency. In the event
    that applicable statutes, requirements, or regulations require that the
    person generating, transporting, applying disposing or otherwise
    managing a waste or a sludge obtain a permit from an agency, and
    where those activities occur within the boundaries of the District,
    notice of an application must be provided to the District by the
    applicant within ten days of the application. In no event may waste or
    sludge be permitted to be applied in any manner in any outcrop area
    of any aquifer within the [District].
    CR.577-78; see also Rules of the Guadalupe County Groundwater Conservation
    District, GUADALUPE COUNTY GROUNDWATER CONSERVATION DISTRICT (Nov. 10,
    2011), available at http://gcgcd.org/uploads/3/4/6/6/3466695/gcgcd_rules.pdf.
    Despite acknowledging the Commission is the “appropriate agency” to
    administer the SWDA, the Rule goes on to prohibit the operation of waste facilities
    within its jurisdiction, stating, that “[i]n no event may waste or sludge be permitted
    to be applied in any manner in any outcrop area of any aquifer within the
    [District].” CR.577-78.
    In its First Amended Original Petition (the live petition), the declaratory
    relief sought by the District is limited to a judgment “declaring that operation of a
    -8-
    landfill at the location proposed by [Post Oak] on the outcrop of the Upper Wilcox
    Aquifer violates District Rule 8.1.” CR.1193-1204.2
    2.    The parties’ dispositive motions and the trial court’s rulings
    Post Oak filed a plea to the jurisdiction, arguing that the District’s claim was
    not ripe and that the District had failed to exhaust its administrative remedies.
    CR.15-23. The District moved for partial summary judgment, CR.25-156, before
    responding to Post Oak’s plea, CR.490-501. In its response to the jurisdictional
    plea, the District conceded “the District may exercise its right to participate in [a
    contested case] hearing [regarding Post Oak’s permit application] as an affected
    person” and that, should the Commission grant the permit, “the District may
    exhaust its administrative remedies and seek judicial review of that agency
    decision.” CR.496. The trial court denied Post Oak’s plea.
    The Commission then intervened and filed its own plea to the jurisdiction,
    asserting that the case must be dismissed on ripeness grounds and because the
    2
    The District’s Original Petition additionally sought a judgment declaring
    Post Oak to have violated District Rule 8.1 by failing to notify the District of its
    permit application. CR.4-14. “[A]n amended petition which omits causes of
    action previously alleged serves to dismiss these claims from the amended
    pleading.” Kinney v. Palmer, 04-07-00091-CV, 
    2008 WL 2515696
    , at *2 (Tex.
    App.—San Antonio June 25, 2008, no pet.) (mem. op.) (citing J.M. Huber Corp. v.
    Santa Fe Energy Res., Inc., 
    871 S.W.2d 842
    , 844 (Tex. App.—Houston [14th
    Dist.] 1994, writ denied)).
    -9-
    Commission has exclusive (or, alternatively, primary) jurisdiction over the
    management of municipal solid waste. CR.1082-99.
    The trial court granted the District’s motion for partial summary judgment,
    CR.1179-92, and, on June 23, 2015, denied the Commission’s plea to the
    jurisdiction without further written opinion, CR.1218.           Post Oak and the
    Commission both timely appealed from the order denying the Commission’s plea.
    CR.1223-25, 1228-31, attached in Appendix, Tab A; see TEX. CIV. PRAC. & REM.
    CODE § 51.014(a)(8) (West 2015).
    SUMMARY OF THE ARGUMENT
    The trial court lacks subject matter jurisdiction over this suit because the
    District’s claim is not ripe and the Commission has exclusive (or, alternatively,
    primary) jurisdiction over the siting of municipal solid waste landfills.
    The harm alleged by the District cannot come to pass unless Post Oak’s
    permit application—still pending with the Commission—is granted. The District
    acknowledges this reality. Three courts have held expressly that until such a
    permit is issued any alleged harm caused by the landfill is hypothetical and thus
    unripe for judicial review.    Additionally, as the District seeks to prevent the
    operation of the landfill, attempting to effectively usurp the Commission’s
    permitting authority, a judgment in its favor would improperly interfere with the
    Commission’s     exclusive    (or,   alternatively,   primary)   jurisdiction.   The
    -10-
    Commission’s jurisdiction over the subject matter of this dispute is made clear by
    the pervasive regulatory scheme delegating to the Commission responsibility for
    the siting of municipal solid waste landfills. Finally, even if the District’s claim is
    ripe and the judgment requested would not interfere with the Commission’s
    exclusive or primary jurisdiction, the claim cannot be enforced through the UDJA
    because District Rule 8.1 is an administrative rule, as opposed to a statute or
    municipal ordinance.
    STANDARD OF REVIEW
    A plea to the jurisdiction challenges a trial court’s authority to determine the
    subject matter of the suit. Tex. Natural Res. Conserv. Comm’n v. IT-Davy, 
    74 S.W.3d 849
    , 855 (Tex. 2002). Jurisdiction is a question of law, and the Court
    reviews a trial court’s ruling on subject matter jurisdiction de novo. 
    Id. The plaintiff
    bears the burden of pleading sufficient facts that affirmatively establish
    the court’s jurisdiction. City of San Antonio v. Butler, 
    131 S.W.3d 170
    , 174 (Tex.
    App.—San Antonio 2004, pet. denied).
    ARGUMENT
    I.    The Trial Court Lacks Subject Matter Jurisdiction Because The
    District’s Claim Is Not Ripe.
    A court lacks subject matter jurisdiction if a claim is not ripe. Patterson v.
    Planned Parenthood of Houston & Se. Tex., Inc., 
    971 S.W.2d 439
    , 442 (Tex.
    1998). Under the ripeness doctrine, courts “consider whether, at the time a lawsuit
    -11-
    is filed, the facts are sufficiently developed so that an injury has occurred or is
    likely to occur, rather than being contingent or remote.” Waco Indep. Sch. Dist. v.
    Gibson, 
    22 S.W.3d 849
    , 851-52 (Tex. 2000) (internal quotation marks omitted).
    “A case is not ripe when determining whether the plaintiff has a concrete injury
    depends on contingent or hypothetical facts, or upon events that have not yet come
    to pass.” 
    Id. Applied to
    suits for declaratory judgments, the ripeness doctrine provides
    that a “declaratory judgment is appropriate only if there is a justiciable controversy
    about the rights and status of the parties and the declaration will resolve the
    controversy.” Hardee v. City of San Antonio, No. 04-07-00740-CV, 
    2008 WL 2116251
    , at *1 (Tex. App—San Antonio May 21, 2008, no pet.) (mem. op.). “To
    constitute a justiciable controversy, there must exist a real and substantial
    controversy involving genuine conflict of tangible interests and not merely a
    theoretical dispute.”       Bexar-Medina-Atascosa Counties Water Control &
    Improvement Dist. No. 1 v. Medina Lake Prot. Ass’n, 
    640 S.W.2d 778
    , 779-80
    (Tex. App.—San Antonio 1982, writ ref’d n.r.e.).
    A.        The District’s claimed injury is impermissibly speculative.
    Texas law makes clear that no justiciable controversy exists in this case
    because Post Oak does not yet have the right to construct the landfill in the
    District’s territory. The trial court cannot assume jurisdiction over the District’s
    -12-
    claim solely because the Commission might at some point grant a municipal solid
    waste landfill permit to Post Oak. Several cases are directly on point, including
    three that have addressed ripeness in the context of a permit for a landfill pending
    with the Commission.
    The precise question of the ripeness of a claim alleging harm based on a
    permit for a landfill still pending with the Commission was addressed in City of
    Anson v. Harper, 
    216 S.W.3d 384
    , 389-91 (Tex. App.—Eastland 2006, no pet.).
    There, the plaintiffs sought damages and equitable relief stemming from a city’s
    proposal to build a municipal solid waste landfill on land where they owned
    mineral rights. 
    Id. at 387-88.
    The city argued that the plaintiffs’ claims were not
    ripe because “its landfill permit application was still pending before the TCEQ.”
    
    Id. at 389-90.
    The court agreed:
    The City has filed a permit application with the TCEQ. This
    application may or may not be granted. Unless and until the City
    receives a permit, it cannot construct or operate a landfill. Plaintiffs
    acknowledged during oral argument that there are contingencies
    because of the permit-application process . . . . What might happen if
    the City’s permit application is approved does not present a ripe
    controversy, and the trial court does not have jurisdiction to hear a
    claim based upon future events.
    
    Id. at 390
    (emphasis added).
    In reaching its decision, the court relied on two Fifth Circuit cases that
    “found a controversy over a proposed landfill was not ripe because regulatory
    approval of the landfill was still pending.” 
    Id. (citing Monk
    v. Huston, 340 F.3d
    -13-
    279 (5th Cir. 2003); Smith v. City of Brenham, Tex., 
    865 F.2d 662
    (5th Cir. 1989));
    see also 
    id. (“Texas courts
    have traditionally relied upon federal decisions when
    determining ripeness questions because of their experience in this area of the
    law.”). The court explained that in Smith and Monk, “neighboring landowners
    filed suit to enjoin further development of proposed landfills. In both cases, permit
    applications were pending before state agencies. Because the permit applications
    were still pending, the construction and operation of a landfill was merely a
    possibility; consequently, plaintiffs had not yet suffered actual damage.”        
    Id. (citing Monk
    , 340 F.3d at 283; 
    Brenham, 865 F.2d at 663-64
    ).
    The situation here is the same as in Harper, Monk, and Brenham. The
    District concedes that Post Oak may not begin construction of the proposed landfill
    until and unless it has been issued a permit by the Commission. Indeed, on the
    face of its pleading, the District (1) admits that the Commission’s application
    process is ongoing and incomplete and (2) highlights its active involvement in a
    Commission-led process, including, for example, its participation in a Commission
    hearing only weeks before filing this lawsuit. CR.1199 (alleging what would
    occur to the landfill “if permitted and constructed”); CR.1200 (“During this
    meeting, the District once again informed TCEQ, via public comment, that the
    Landfill Applicant’s proposed landfill was located on the outcrop of the upper
    Wilcox, in violation of the District’s rules.”).          The District’s attorney
    -14-
    acknowledged to the trial court that the proposed landfill “has not been permitted,”
    explaining, “[i]t’s still being reviewed by [the Commission]; but were it to be
    permitted, it would allow for construction of a landfill.” 1RR.5.
    As in Monk, “[t]he application may or may not be granted, and thus [the
    District] may or may not be harmed. Therefore, until the TCEQ issues the permit,
    this dispute remains abstract and hypothetical and thus unripe for judicial 
    review.” 340 F.3d at 283
    . Put simply, this case has already been decided three times, each
    time against the existence of subject matter jurisdiction.
    B.     Neither the trial court’s reasoning nor the District’s arguments
    below justify a contrary ruling.
    In its response to the Commission’s plea, the District asserted without
    citation that “a justiciable controversy exists because Post Oak has already
    conceded that it is seeking from TCEQ a permit to construct and operate a solid
    waste landfill on the outcrop of the Carrizo-Wilcox aquifer.” CR.1163 The
    District’s argument is no different than that made by the plaintiffs in Harper,
    Monk, and Brenham. It is squarely contradicted by the case law. See Mayhew v.
    Town of Sunnyvale, 
    964 S.W.2d 922
    , 929 (Tex. 1998) (stating that a regulatory
    takings claim cannot be ripe without “a final and authoritative determination of the
    type and intensity of development legally permitted on the subject property”
    (quoting MacDonald, Sommer & Frates v. Yolo Cnty., 
    477 U.S. 340
    , 348 (1986)).
    -15-
    Although the trial court denied the Commission’s plea to the jurisdiction
    without a written opinion, it offered its rationale for finding the District’s claims to
    be ripe in its order on Post Oak’s plea. The court stated, in full: “Post Oak also
    argues the District has not been injured because any injury is ‘uncertain and
    contingent on future events.’      However, Post Oak has clearly indicated their
    intention to build a waste disposal site and has not attempted any compliance with
    the District’s rule. This dispute is undoubtedly ripe.” CR.550-51.
    As explained above, ripeness depends not on a person’s or entity’s
    “intention,” but rather on the existence of a “concrete injury,” one not “depend[ent]
    on contingent or hypothetical facts, or upon events that have not yet come to pass.”
    
    Gibson, 22 S.W.3d at 851-52
    .         And as demonstrated in Harper, Monk, and
    Brenham, where a permit for a landfill is still pending with the Commission, any
    alleged harm caused by the proposed landfill is “abstract and hypothetical and thus
    unripe for judicial review.” 
    Monk, 340 F.3d at 283
    (internal quotation marks
    omitted). Accordingly, the trial court’s order denying the Commission’s plea to
    the jurisdiction should be reversed and the District’s suit dismissed for lack of
    subject matter jurisdiction.
    -16-
    II.   The Trial Court Lacks Subject Matter Jurisdiction Because the
    Commission Has Exclusive Jurisdiction Over The Siting Of Municipal
    Solid Waste Landfills.
    When exclusive agency jurisdiction exists, a trial court lacks subject matter
    jurisdiction and is required to dismiss the claims within the agency’s exclusive
    jurisdiction. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 
    84 S.W.3d 212
    ,
    221 (Tex. 2002). “An administrative agency has exclusive jurisdiction when the
    Legislature grants it the sole authority to make an initial determination in a
    dispute.” Blue Cross Blue Shield of Tex. v. Duenez, 
    201 S.W.3d 674
    , 675 (Tex.
    2006).   “[I]n such matters, a complaining party must exhaust administrative
    remedies before seeking review in district court.” 
    Id. “An agency
    has exclusive jurisdiction when ‘a pervasive regulatory scheme
    indicates that [the Legislature] intended for the regulatory process to be the
    exclusive means of remedying the problem to which the regulation is addressed.’”
    
    Id. at 676
    (alteration in original) (quoting In re Entergy Corp., 
    142 S.W.3d 316
    ,
    322 (Tex. 2004)). “A party cannot circumvent an agency’s exclusive jurisdiction
    by filing a declaratory-judgment action if the subject matter of the action is one
    ‘over which the Legislature intended the [administrative agency] to exercise
    exclusive jurisdiction.’” 
    Id. (alteration in
    original) (quoting Thomas v. Long, 
    207 S.W.3d 334
    , 342 (Tex. 2006)).
    -17-
    Here, the trial court erred in denying the Commission’s plea to the
    jurisdiction because the Legislature has set forth a pervasive regulatory scheme
    providing the Commission with exclusive jurisdiction regarding the siting of
    municipal solid waste landfills. The District’s lawsuit seeks a holding that should
    Post Oak’s proposed facility be sited as proposed in its permit application it would
    violate District Rule 8.1. As the District seeks to prevent the operation of the
    landfill, attempting to effectively usurp the Commission’s permitting authority, a
    judgment in its favor would improperly interfere with the Commission’s exclusive
    jurisdiction.
    A.        The pervasive regulatory scheme indicates that the Legislature
    intended the Commission to have exclusive jurisdiction over the
    siting of municipal solid waste landfills.
    Through numerous rules and regulations, the Texas Legislature has clearly
    indicated its intent for the Commission to be exclusively responsible for the siting
    of municipal solid waste landfills.       The SWDA makes the Commission
    “responsible . . . for the management of municipal solid waste,” requiring the
    Commission to “coordinate municipal solid waste activities” and “control[] all
    aspects of the management of municipal solid waste . . . by all practical and
    economically feasible methods consistent with its powers and duties under [the
    Act] and other law.” TEX. HEALTH & SAFETY CODE § 361.011(a)-(b) (emphasis
    added). The SWDA gives the Commission all “powers necessary or convenient to
    -18-
    carry out [its] responsibilities under [the Act].” 
    Id. § 361.011(c).
    In carrying out
    these obligations, the Commission issues permits for the construction, operation,
    and maintenance of municipal solid waste landfills. 
    Id. § 361.061.
    The SDWA’s regulatory scheme is further supported by detailed regulations.
    30 TEX. ADMIN. CODE. ch. 330. These regulations include an exhaustive list of
    information that must be included in applications, ranging from maps identifying
    “all known water wells within 500 feet of the proposed permit boundary,” 
    id. § 330.61(c)(2),
    to “flow diagrams indicating the storage, processing, and disposal
    sequences for the various types of wastes and feedstocks received,” 
    id. § 330.63(b)(2)(A).
    Permit applications must be extremely detailed so as to “provide
    the executive director data of sufficient completeness, accuracy, and clarity to
    provide assurance that operation of the site will pose no reasonable probability of
    adverse effects on the health, welfare, environment, or physical property of nearby
    residents or property owners.” 
    Id. § 330.57(d).
    Courts have consistently recognized the Commission’s exclusive authority
    in this area. For example, in Smith v. Houston Chemical Services, Inc., the Third
    Court of Appeals held that the trial court erred in rendering judgment denying an
    application for a permit under the SWDA. 
    872 S.W.2d 252
    , 258 (Tex. App.—
    Austin 1994, writ denied). The court stated plainly that “[t]he granting or denying
    of an application under the Act is an executive function committed exclusively to
    -19-
    the Commission.” Id.; see also Rawls v. Tex. Comm’n on Envtl. Quality, No. 11-
    05-00368CV, 
    2007 WL 1849096
    , at *2 (Tex. App.—Eastland June 18, 2007, no
    pet.) (noting that the claimant conceded the “TCEQ has exclusive jurisdiction over
    standard permits”); McDaniel v. Tex. Natural Res. Conservation Comm’n, 
    982 S.W.2d 650
    , 653 (Tex. App.—Austin 1998, pet. denied) (explaining that the
    SWDA gives the Commission “general authority over municipal solid waste,
    allowing the agency to control and manage all aspects of municipal solid waste by
    all practical means as long as such methods are consistent with its powers and
    duties under the Act”).
    The primacy of the Commission’s authority is reflected in other statutes as
    well. The Comprehensive Act, for example, gives the Commission the power to
    implement and enforce that act’s provisions regarding the management of
    municipal solid waste.      TEX. HEALTH & SAFETY CODE § 363.022(a).                The
    Commission’s authority is also reflected in the Water Code, which provides that
    “no person may . . . discharge . . . municipal waste . . . into or adjacent to any water
    in the state” “[e]xcept as authorized by the [C]ommission.” TEX. WATER CODE §
    26.121(a)(1) (emphasis added).
    Plainly, the District, an entity “subject to the continuing right of supervision
    by the State of Texas, by and through the [Commission],” cannot legitimately seek
    to undermine years of Commission work as well as the Commission’s permitting
    -20-
    authority by appealing to the courts for judgments rendering Commission permits
    ineffective. 30 TEX. ADMIN. CODE. § 293.3(a).
    In considering whether the District exceeded its authority by attempting to
    ban waste facilities within its geographic boundaries, 3 it is instructive to consider
    how other groundwater conservation district rules address waste facilities in the
    context of “prevent[ing] degradation of water quality.” See TEX. WATER CODE §
    36.101(a). As set forth above, the District’s Rule 8.1 prohibits waste or sludge
    from being “applied in any manner in any outcrop area of any aquifer within the
    [District],” which the District maintains precludes disposal in a municipal solid
    waste facility located in the outcrop area. CR.577-78. In contrast, the Garza
    County Underground Water Conservation District’s comparable Rule 8, entitled
    “Place of Drilling a Well,” provides that “[a] well shall be located a minimum
    horizontal distance of 150 feet from any tight sewage facility and liquid waste
    collection facility.” See Garza County District Rule 8(a), attached in Appendix,
    Tab B.     Similarly, the Evergreen Underground Water Conservation District
    prohibits a well from being “located within five-hundred (500) feet of a sewage
    3
    The boundaries of the District are essentially aligned with those of the
    outcrop area of the Carrizo-Wilcox aquifer.          See GUADALUPE COUNTY
    GROUNDWATER CONSERVATION DISTRICT, About Us (last two maps on page),
    available at http://gcgcd.org/about.html.
    -21-
    treatment plant [or] solid waste disposal site[.]”     See Evergreen District Rule
    6.3(b), attached in Appendix, Tab C.
    Unlike the Garza County and Evergreen Districts’ rules that address the
    placement of a water well near an existing waste facilities, here District Rule 8.1
    categorically prohibits the siting of a municipal solid waste facility within the
    District’s geographic boundaries, no matter how carefully designed and monitored
    to prevent infiltration of contaminants into the subsurface.       Thus, instead of
    regulating water withdrawals that might affect water quality, the District seeks to
    regulate Commission-sanctioned activities. In short, the District wishes to extend
    its regulatory authority to an outright prohibition on landfills within its geographic
    boundaries, regardless of the fact that the Commission goes to great lengths to
    ensure that these facilities are not a threat to the environment in general and
    groundwater in particular.
    B.     Limited local authority over solid waste facilities does not defeat the
    Commission’s exclusive jurisdiction.
    The Legislature has given municipalities and counties—but not groundwater
    conservation districts—limited authority to prohibit solid waste disposal in
    designated areas. See TEX. HEALTH & SAFETY CODE §§ 363.112, 364.012 (relating
    to the authority of municipalities and counties to adopt ordinances prohibiting the
    disposal of solid waste in certain areas of a municipality or county).          Even
    municipalities and counties may only prohibit the siting of a municipal solid waste
    -22-
    landfill in certain areas of the municipality or county by “specifically designat[ing]
    the area of the municipality or county, as appropriate, in which the disposal of
    municipal or industrial solid waste disposal will not be prohibited.”           
    Id. § 363.112(a)
    (emphasis added). Therefore, even if the District had some limited
    authority to regulate the siting of waste facilities—which it does not—District Rule
    8.1 does not comport with state laws that give local governments authority to
    designate areas in which disposal and processing facilities are prohibited only if
    they designate areas where these facilities will not be prohibited. Nothing in the
    Comprehensive Act can reasonably be interpreted to grant the District the authority
    to adopt a ban on waste disposal and processing sites within its geographic
    boundaries.
    The Comprehensive Act’s provisions regarding the prescribed authority of
    some local governmental bodies’, namely counties’ and municipalities’, abilities to
    prohibit the disposal of solid waste in certain geographic areas draw into sharp
    relief how the judgment requested by the District would impermissibly interfere
    with the Commission’s authority to approve the siting of waste facilities. As
    discussed, the provision allowing these governmental entities to prohibit the
    processing or disposal of solid waste within their boundaries also requires that they
    permit such activities in other areas.   Tex. Health & Safety Code § 363.112(a).
    Thus, when the Legislature has given certain local governments the authority to
    -23-
    control the citing of waste disposal facilities, it has also ensured that they cannot
    prohibit the processing and disposal of solid waste within their boundaries
    altogether.
    In this regard, the Comprehensive Act would be of little value were
    groundwater conservation districts able to prohibit “waste” from being “permitted
    to be applied in any manner” by obtaining judgments effectively declaring
    Commission permits invalid over great swaths of territory.        CR.577-78. The
    decision whether to permit a municipal solid waste facility requires a balancing of
    complex policy considerations and an exercise of legislative-flavored discretion.
    See, Key Western Life Ins. Co. v. State Bd. of Ins., 
    350 S.W.2d 839
    , 850 (Tex.
    1961). The Commission is in charge of that balancing test, equipped to account for
    concerns raised by the District and any other stakeholders, as well as for the
    environmental protections of modern waste disposal facilities.
    C.      The District’s proper recourse is clear: exhaust its administrative
    remedies.
    The Commission’s exclusive jurisdiction over municipal solid waste
    permitting does not prohibit the District from being heard. Indeed, the District has
    conveyed the same concerns it raises in this lawsuit in comments submitted to the
    Commission in the ongoing public participation process. CR.59-64, 1200. The
    District cannot now circumvent the administrative review process entirely by
    seeking to obtain a declaration regarding the legality of the proposed landfill. See
    -24-
    Tex. Dept. of Pub. Safety v. Moore, 
    985 S.W.2d 149
    , 156-57 (Tex. App.—Austin
    1998, no pet.) (providing UDJA cannot be used to “circumvent” the exclusive
    administrative remedies provided by statute). Proceeding with this lawsuit would
    avoid the very process designed to address the District’s concerns, effecting a
    judicial intrusion into the Commission’s exclusive jurisdiction over the siting of
    municipal solid waste landfills.
    III.   Alternatively, The Trial Court Lacks Subject Matter Jurisdiction Over
    The District’s Claim Because The Commission Has Primary
    Jurisdiction.
    To the extent the Court finds the Commission does not have exclusive
    jurisdiction over the District’s claim, the doctrine of primary jurisdiction also
    warrants reversal of the trial court’s order. The Supreme Court of Texas has
    described this doctrine as follows:
    [T]he primary jurisdiction doctrine requires trial courts to allow an
    administrative agency to initially decide an issue when: (1) an agency
    is typically staffed with experts trained in handling the complex
    problems in the agency’s purview; and (2) great benefit is derived
    from an agency’s uniformly interpreting its laws, rules, and
    regulations, whereas courts and juries may reach different results
    under similar fact situations.
    Butnaru v. Ford Motor Co., 
    84 S.W.3d 198
    , 208 (Tex. 2002). The doctrine assures
    that an agency “will not be by-passed on what is especially committed to it, and
    because resort to the courts is still open after the agency has acted.” Jordan v. Staff
    Water Supply Corp., 
    919 S.W.2d 833
    , 835 (Tex. App.—Eastland 1996, no writ)
    -25-
    (quoting Foree v. Crown Cent. Petroleum Corp., 
    431 S.W.2d 312
    (Tex. 1968)); see
    also Beacon Nat’l Ins. Co. v. Montemayor, 
    86 S.W.3d 260
    , 271 (Tex. App.—
    Austin 2002, no pet.) (holding that deference to an agency ensures it will decide, at
    least initially, matters that require “special knowledge, experience and services of
    the administrative tribunal to determine technical and intricate matters of fact”
    (quoting Cash Am. Int’l, Inc. v. Bennett, 
    35 S.W.3d 12
    , 18 (Tex. 2000)). When a
    court determines that primary jurisdiction applies, the proceeding is typically
    abated while the agency resolves the issues committed to it. See, e.g., In re Sw.
    Bell Tel. Co., 
    226 S.W.3d 400
    , 404 (Tex. 2007) (orig. proceeding).
    The Commission has the particularized expertise to determine the
    environmental    protection    issues   presented   by    the   District’s   lawsuit.
    Given this expertise, the Commission is singularly situated to determine the issue
    central to the District’s purported ban on municipal solid waste facilities and other
    waste operations, namely whether the site proposed by Post Oak is well-suited for
    use as a municipal solid waste facility.        As addressed above, the SWDA
    specifically commits all landfill permitting authority to the Commission. See TEX.
    HEALTH & SAFETY CODE § 361.011 (granting powers and duties necessary or
    convenient to carrying out responsibilities for managing municipal solid waste).
    Accordingly, if the District’s claim does not fall within the Commission exclusive
    -26-
    jurisdiction, the doctrine of primary jurisdiction nonetheless requires dismissal of
    the claim for lack of subject matter jurisdiction.
    IV.   District Rule 8.1 Cannot Be Enforced Through the UDJA.
    Even if the District’s claim is ripe and the judgment requested would not
    interfere with the Commission’s exclusive or primary jurisdiction, its claim is not
    properly made under the UDJA because District Rule 8.1 is an administrative rule,
    as opposed to a statute or ordinance.
    The UDJA allows for claims challenging the construction of a “statute” or
    “municipal ordinance,” but not an agency rule. TEX. CIV. PRAC. & REM. CODE §
    37.004 (“A person . . . whose rights, status or other legal relations are affected by
    a statute [or] municipal ordinance . . . may have determined any question of
    construction or validity arising under the statute [or] ordinance . . . and obtain a
    declaration of rights, status, or other legal relations thereunder.”). Any declaration
    the District “purports to seek [which] concern[s] the proper construction of the
    [District’s] rules, as opposed to a statute . . . falls outside the UDJA altogether.”
    See Tex. State Bd. of Veterinary Med. Examiners v. Giggleman, 
    408 S.W.3d 696
    ,
    707 (Tex. App.—Austin 2013, no pet.).
    -27-
    PRAYER
    For these reasons, Appellant Post Oak Clean Green, Inc. prays that the Court
    reverse the trial court’s order denying the Commission’s plea to the jurisdiction
    and render judgment dismissing the District’s claim. Appellant also prays for such
    further relief to which it may be entitled.
    Respectfully submitted,
    BRACEWELL & GIULIANI LLP
    By: /s/Christopher L. Dodson
    Christopher L. Dodson
    State Bar No. 24050519
    chris.dodson@bgllp.com
    Mark R. Wulfe
    State Bar No. 24088681
    mark.wulfe@bgllp.com
    BRACEWELL & GIULIANI LLP
    711 Louisiana Street, Suite 2300
    Houston, Texas 77002-2770
    Telephone: (713) 223-2300
    Facsimile: (713) 221-1212
    John A. Riley
    State Bar No. 16927900
    jriley@jgdpc.com
    JACKSON GILMOUR & DOBBS, PC
    1115 San Jacinto Blvd., Suite 275
    Austin, Texas 78701
    Telephone: (512) 574-8861
    Facsimile: (512) 574-8861
    ATTORNEYS FOR APPELLANT,
    POST OAK CLEAN GREEN, INC.
    -28-
    CERTIFICATE OF SERVICE
    I certify that a copy of the Brief of Appellant, Post Oak Clean Green, Inc.,
    was served on counsel of record by EFile as follows on the 17th day of September
    2015, addressed as follows:
    Mr. Ken Paxton                                        VIA EFILE
    Mr. Charles E. Roy
    Mr. Scott A. Keller
    Mr. Bill Davis
    Ms. Nancy Elizabeth Olinger
    Ms. Cynthia Woelk
    OFFICE OF THE ATTORNEY GENERAL
    P.O. Box 12548 (MC 059)
    Austin, Texas 78711-2548
    Telephone: (512) 936-1896
    Facsimile: (512) 370-9191
    Attorneys for Texas Commission on Environmental
    Quality and Post Oak Clean Green, Inc.
    Ms. Marisa Perales                                    VIA EFILE
    FREDERICK, PERALES, ALLMON & ROCKWELL, PC
    707 Rio Grande, Suite 200
    Austin, Texas 77552-6894
    Attorneys for Guadalupe County Groundwater
    Conservation District
    /s/Christopher L. Dodson
    Christopher L. Dodson
    -29-
    CERTIFICATE OF COMPLIANCE
    This brief complies with the length limitations of TEX. R. APP. P. 9.4(i)(3)
    because this brief consists of 6,184 words, excluding the parts of the brief
    exempted by TEX. R. APP. P. 9.4(i)(1).
    /s/Christopher L. Dodson
    Christopher L. Dodson
    -30-
    APPENDIX
    Order of June 23, 2015.............................................................................................. A
    Garza County District Rule 8(a) ............................................................................... B
    Evergreen District Rule 6.3(b) .................................................................................. C
    -31-
    Tab A
    DE      CROW
    CAUSE NO. 14-0863-CV                    ~   Dist. Court. Guadalupe Co. Tll
    GUADALUPE COUNTY                            § IN THE DISTRICT COURT
    GROUNDWATERCONSERVATION                     §
    DISTRICT,                                   §
    Plaintiff,                        §
    v.                                          § GUADALUPE COUNTY, TEXAS
    §
    POST OAK CLEAN GREEN, INC.,                 §
    Defendant.                          § 25TH JUDICIAL DISTRICT
    ORDER
    Before the Court is the Texas Commission on Environmental Quality's (TCEQ)
    Plea to the Jurisdiction. Having considered the Plea to the Jurisdiction, the responses
    thereto, and the other relevant papers on file with the Court, it is hereby ORDERED
    that TCEQ's Plea to the Jurisdiction is:
    _ _ Granted:        All Plaintiffs claims are dismissed for lack of jurisdiction.
    ___)(_ Denied:
    THE HONORABLE W.C. KIRKENDALL
    JUDGE PRESIDING
    Page 1218
    Tab B
    RULE 8 -- PLACE OF DRILLING A WELL
    After an application for a well permit has been granted, the well, if drilled, must be drilled within ten
    yards of the location specified in the permit, and not elsewhere. If the well should be commenced or
    drilled at a different location, the drilling or operation of such well may be enjoined by the Board pursuant
    to Chapter 36, Texas Water Code.
    [a] A well shall be located a minimum horizontal distance of 150 feet from any water
    tight sewage facility and liquid waste collection facility.
    [b] A well shall be located a minimum horizontal distance of 150 feet from any
    contamination, such as existing or proposed livestock or poultry yard, privies, and septic
    absorption field.
    [c] A well shall be located at a site not generally subject to flooding; provided, however,
    that if a well must be placed in a flood prone area, it shall be completed with a watertight sanitary
    well seal and steel casing extending to a minimum of 24 inches above the known flood level.
    RULE 9 -- REWORKING OR REPLACING OF WELL
    [a] No person shall rework, redrill, or re-equip a well in a manner that would increase the rate of
    production of water from such well beyond any previous normal rate of production of such well without first
    having made an application to the Board, and having been granted a permit by the Board to do so. Nor
    shall any person replace a well without a permit from the Board. A replacement well, in order to be
    considered as such, must be drilled within one hundred fifty (150) feet of the old well and not elsewhere. It
    must not be located toward any other well or authorized well site unless the new location complies with the
    minimum spacing requirements set out in Rule 6 [a]; otherwise the replacement well shall be considered to
    be a new well for which application must be made under Rule 5 above. Provided, however, that the Board
    may grant an exception without notice or hearing in any instance where the replacement well is placed
    farther away from any existing wells or authorized well sites.
    The location of the old well (the well being replaced) shall be protected in accordance with the
    spacing rules of the District until the replacement well is drilled and tested. The landowner or his agent
    must within 120 days of the issuance of the permit declare in writing to the District which one of these two
    wells he desires to produce. If the landowner does not notify the District of his choice within this 120 days,
    then it will be conclusively presumed that the new well is the well he desires to retain. Immediately after
    determining which well will be retained for production the other well shall be:
    10
    Tab C
    RULE 5.12 MONITORING DEVICES:
    All production facilities or wells subject to the requirements of this Subsection shall be equipped with
    production monitoring devices approved by the District and available for District inspection at any time
    during normal business hours. An hour meter may be considered as a production monitoring device
    on the well, if the well output (gpm) can be accurately determined.
    SECTION 6. OTHER DISTRICT ACTIONS AND DUTIES
    RULE 6.0 ANNUAL REPORTING FOR UN-PERMITTED, NON-EXEMPT WELLS:
    a.    Reporting: Within 15 days of December 31, 2003, and annually there after, the owners or
    operators of all non-exempt wells shall file a report to the District the volume of
    groundwater produced for the previous calendar year, the use of the groundwater, and the
    aquifer from which the water was produced. The report shall be filed on the appropriate
    form(s) provided by the District.
    b.    Monitoring Devices: All production facilities or wells subject to the requirements of this
    Subsection shall be equipped with production monitoring devices approved by the District
    and available for District inspection at any time during normal business hours. An hour
    meter may be considered as a production monitoring device on the well, if the well output
    (gpm) can be accurately determined.
    c.    Non-compliance of Reporting: Failure to file the required reports shall result in forfeiture
    of withdrawal rights. The Board may, at its discretion, require a non-compliant well owner to
    apply for a permit for the well or prohibit further withdrawals from the well.
    RULE 6.1 DISTRICT MANAGEMENT PLAN: The District Plan specifies the acts, procedures, and
    performance necessary to prevent waste and protect rights of owners or interest in groundwater, and
    forms the basis of these rules and permit requirements imposed by the Board. The Board will review
    and amend the plan as necessary, and when the Board considers a new plan necessary or desirable,
    a new plan may be adopted.
    RULE 6.2 REGISTRATION OF NEW WELLS:
    a.    It is a violation of these rules for a well owner, well operator, or water well driller to drill any
    well without an approved registration form filed with the District.
    b.    All new wells must be registered by the well owner, well operator, or water well driller prior
    to being drilled. Registration may be by mail or telephonic document transfer, using a form
    provided by the District. The District staff will review the registration and make a preliminary
    determination on whether the well meets drilling and production permit exclusions or
    exemptions provided in Rule 5.3, and must inform the registrant of their determination
    within five business days. If the preliminary determination is that the well is excluded or
    exempt from requiring a drilling and operating permit, the registrant may begin drilling
    immediately upon receiving the approved registration.
    RULE 6.3 LOCATIONS OF WELLS:
    a.    After an application for a well permit has been granted, the well, if drilled must be drilled
    within thirty (30) feet of the location specified in the permit.
    b.    A well shall be located a minimum horizontal distance of fifty (50) feet from any water-tight
    sewage or liquid-waste collection facility.
    c.    A well shall be located a minimum horizontal distance of one hundred and fifty (150) feet
    from any concentrated sources of contamination, such as existing or proposed livestock or
    poultry yards, privies, underground storage tanks, and septic system absorption fields. If
    this distance can not be accommodated within the limits of the applicant’s property, the
    - 12
    1-23-09
    applicant may apply for a spacing exception in accordance with Rule 5.6. In no case may a
    well be located less than fifty (50) feet from any concentrated sources of contamination.
    d.    A well shall be located at a site not generally subject to flooding; provided, however, that if
    a well must be placed in a flood prone area, it shall be completed with a watertight sanitary
    well seal and steel casing extending a minimum of twenty-four (24) inches above flood
    level.
    e.    No well shall be located within five-hundred (500) feet of a sewage treatment plant, solid
    waste disposal site or land irrigated by sewage plant effluent, or within three-hundred (300)
    feet of a sewage wet well, sewage pumping station or drainage ditch which contains
    industrial waste discharges or wastes from sewage treatment systems.
    RULE 6.4 MINIMUM STANDARDS OF WELL COMPLETION:
    a.    The annular space between the borehole and the casing shall be filled from ground level to
    a minimum depth of twenty (20) feet with cement.
    b.    A concrete slab or sealing block shall be placed above the cement around the casing at the
    ground surface.
    1. The slab or block shall extend at least two (2) feet from the well in all directions, have a
    minimum thickness of four (4) inches, and should be separated from the well casing by
    a plastic or mastic coating or sleeve to prevent bonding of the slab to the casing.
    2. The surface of the slab shall be sloped to drain away from the well.
    c.    The top of the casing shall extend a minimum of one (1) foot above the ground surface.
    d.    If a well is to be completed with polyvinyl chloride (PVC) casing, in lieu of placing A
    concrete slab around the casing at the ground surface as provided for in section (2) of this
    rule, a steel sleeve may be used to protect the casing from breakage. The steel sleeve
    shall be a minimum of three-sixteenths (3/16) inches in thickness and eighteen (18) inches
    in length, shall extend six (six) inches into cement, and shall be two (2) inches larger in
    diameter than the polyvinyl chloride (PVC) casing being used.
    e.    All wells that are to be completed in the artesian or confined portion of an aquifer shall be
    completed so that waters from other strata or zones are not allowed to commingle through
    the borehole-casing annulus. Therefore, one of the following shall apply:
    f.    If the well is to be completed with steel casing, the annular space between the borehole
    and the casing shall be filled with cement from the top of the water-bearing formation to be
    produced from to the land surface. If the well is to be completed with polyvinyl chloride
    (PVC) casing, the Borehole-casing annulus shall be filled with cement, palletized bentonite,
    mud, or other suitable material if specifically approved by the Board, from the top of the
    water-bearing formation to be produced from to the land surface, provided that if cement is
    not used, a cement plug will be installed as required in section (a) of this rule.
    g.    If a well is to be gravel packed the full length of the casing, it shall be completed with
    double string of casing. The outside string of casing must be set to the top of the desired
    aquifer formation so as to seal off all water bearing strata above the formation, and extend
    one foot above land surface. The annulus between the outside casing and the borehole
    shall be completed according to subsection (e.1). The second string of casing may then be
    set at the desired depth in the aquifer, and the annulus between the two casings shall
    contain gravel.
    h.    If a gravel packed well is to be drilled in the unconfined portion of an aquifer, it shall be
    completed with a double string of casing. The outside string of casing shall be set at depth
    of 20 feet below land surface, extend one foot above land surface, and shall be completed
    according to subsection (a). The second string of casing may then be set inside of the first
    string of casing at the desired depth in the aquifer, and the annulus between the two
    casings shall contain gravel.
    - 13
    1-23-09
    

Document Info

Docket Number: 04-15-00433-CV

Filed Date: 9/17/2015

Precedential Status: Precedential

Modified Date: 9/29/2016

Authorities (22)

McDaniel v. TEX. NAT. RESOURCE CONSERV. COM'N , 982 S.W.2d 650 ( 1998 )

Jordan v. Staff Water Supply Corp. , 919 S.W.2d 833 ( 1996 )

Albert J. Smith, Jr., Et Ux., Julia C. Smith v. City of ... , 865 F.2d 662 ( 1989 )

J.M. Huber Corp. v. Santa Fe Energy Resources, Inc. , 871 S.W.2d 842 ( 1994 )

In Re Southwestern Bell Telephone Co., LP , 50 Tex. Sup. Ct. J. 823 ( 2007 )

Texas Department of Public Safety v. Moore , 1998 Tex. App. LEXIS 7354 ( 1998 )

Patterson v. Planned Parenthood of Houston and Southeast ... , 41 Tex. Sup. Ct. J. 1001 ( 1998 )

Mayhew v. Town of Sunnyvale , 964 S.W.2d 922 ( 1998 )

Foree v. Crown Central Petroleum Corporation , 11 Tex. Sup. Ct. J. 462 ( 1968 )

City of San Antonio v. Butler , 131 S.W.3d 170 ( 2004 )

In Re Entergy Corp. , 47 Tex. Sup. Ct. J. 729 ( 2004 )

City of Anson v. Harper , 2006 Tex. App. LEXIS 6055 ( 2006 )

Smith v. Houston Chemical Services, Inc. , 872 S.W.2d 252 ( 1994 )

Thomas v. Long , 49 Tex. Sup. Ct. J. 532 ( 2006 )

Monk v. Huston , 340 F.3d 279 ( 2003 )

Blue Cross Blue Shield of Texas v. Duenez , 49 Tex. Sup. Ct. J. 1015 ( 2006 )

Butnaru v. Ford Motor Co. , 45 Tex. Sup. Ct. J. 916 ( 2002 )

Beacon National Insurance Co. v. Montemayor , 2002 Tex. App. LEXIS 5425 ( 2002 )

Bexar-Medina-Atascosa Counties Water Control & Improvement ... , 1982 Tex. App. LEXIS 5235 ( 1982 )

Key Western Life Insurance v. State Board of Insurance , 163 Tex. 11 ( 1961 )

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