Securing Water Supplies for New Development Leonard H. Dougal Jackson Walker L.L.P. (512) 236-2000 Austin Bar Association Real Estate Law.

Slides:



Advertisements
Similar presentations
Conservation Easements in Wyoming – An Overview
Advertisements

Alternatives to Financing Lake Development Infrastructure in Mississippi Public Improvement Districts and Tax Increment Financing February 4, 2009 Lucien.
SANITARY SEWER ACCESS POLICY, 2007 AN OVERVIEW CITY OF TUSCALOOSA SANITARY SEWER ACCESS POLICY, 2007 AN OVERVIEW.
BOARD OF COUNTY COMMISSIONERS DECEMBER 11, 2012 CELEBRATION POINTE COMMUNITY DEVELOPMENT DISTRICTS.
2012 Utility Update TCEQ Water Utilities Program Todd Galiga Environmental Law Division Office of Legal Services.
KELLY HART & HALLMAN LLP MATRIX OF LEGAL AUTHORITIES Home Rule Cities (Austin; Kyle) General Law Cities (Dripping Springs; Bee Caves; Rollingwood; Buda;
WHO’S IN CHARGE? 70,000 MILES OF PROPOSED PIPELINES IN OHIO? AN INFORMATION SESSION Pipeline Impact on Ohio Landowners Michael M. Hollingsworth, Attorney.
Water Demands for Mining Richard Lowerre Adapted from presentation to Texas Groundwater Summit September 2013.
Presented by Richard Lyons and Blair Dickhoner. Common Law. Regulatory Requirements. Contractual Obligations. Statutory Duties.
Is the Service Area of a Federally Indebted Water Utility Still “Sacrosanct” Under 7 USC 1926(b)? TWCA/TRWA Water Law Seminar Water For the Future: Texas.
Who Should Pay for Costly Water and Sewer Infrastructure? The Legal Considerations TRWA / TWCA Water Law Seminar January 24 – 25, 2013 Austin, Texas Leonard.
Administrative Appeals of Planning Decisions by Groundwater Conservation Districts TWCA 66 th Annual Convention Dallas, Texas March 3-5, 2010 Andrew S.
Rate Appeal Group of Districts in Austin area appealed City of Austin Wholesale Water and Wastewater Rates that became effective February 1, 2013 appeal.
Carbon Capture and Storage State Legislation Kathy G. Beckett Midwest Ozone Group January 22-23, 2009.
Condemnation Proceedings, Public Purpose, and Changes to Eminent Domain Law Robert B. Neblett Jackson Walker L.L.P. 100 Congress, Suite 1100 Austin, Texas.
ARIZONA DEPARTMENT OF WATER RESOURCES SURFACE WATER RIGHTS UNIT.
Leonard H. Dougal Jackson Walker L.L.P. (512) Upstream Development Water Needs: Supply and Permitting Considerations 24th Annual.
EFFECTIVE REPRESENTATION ON MOTIONS FOR REHEARING Leonard H. Dougal Travis Wussow AUSTIN BAR ASSOCIATION ADMINISTRATIVE LAW SECTION ANATOMY OF A CONTESTED.
Real Estate Taxes and Other Liens LEARNING OBJECTIVES: Define the term lien and give examples of the following types of liens: voluntary, involuntary,
The Greater Edwards Aquifer Alliance is a coalition of 50 member groups formed to protect the Edwards Aquifer and its contributing Hill Country watersheds.
Commercial Webinar Series 1 hour presentation Questions will be answered at the end. For technical questions, call
MUNICIPAL LAND USE REGULATORY AUTHORITY 2014 Eagle Ford Consortium April 22, 2014 Presented by: Jameene Y. Banks Denton Navarro Rocha Bernal Hyde & Zech,
Water and Wastewater Certification 1 Water & Wastewater Reference Manual.
2011 Legislative Summary Utah APA/ULI Luncheon April 4, 2011.
2008 Legislative Summary Utah APA Luncheon West Valley City March 10, 2008.
Obtaining and Expanding Pipeline Capacity in the Shale Oil and Gas Revolution The Denbury Decision – Its Impact on Pipeline Construction and How the Legislature.
Incorporation & Annexation Incorporation: establishment of city as legal entity –Reasons: provide town services (streets, law enforcement, water/sewer,
Franchise Quest RegulationsRouteFranchiseExhibits Eminent Domain Q $100 Q $200 Q $300 Q $400 Q $500 Q $100 Q $200 Q $300 Q $400 Q $500 Final.
IRRIGATION LAWS IN MISSOURI Jim Vandike Missouri Department of Natural Resources Geological Survey and Resource Assessment Division.
Presentation to the Placer LAFCO Commission September 10, 2014.
M UNICIPAL L EGISLATIVE U PDATE Karl Knapp NC League of Municipalities NCGFOA Summer Conference July 17, 2012.
Annexation Issues in Eden A History of Annexation in Eden Since 1968 NC Annexation History Current Annexation Issues in Eden January 2010.
Traffic Control & Tort Liability
Conflicts, Curtailments and Conversions: Lessons From the Historic Texas Drought 25 th Annual Texas Environmental Superconference August 1, 2013 Austin,
Declaring Beneficial Use in Water Use Groups R
What You Need to Know about Groundwater Conservation Districts In Texas Tyler December 3,2002 Guy Fipps Professor and Extension Irrigation Engineer Dept.
State Action Doctrine. Forms of Public Law Constitutional Law Administrative Law Commercial Regulation Criminal Law International Law (between nations)
Local Powers for Land Use Regulation. Local Land Use Powers Land use regulation is considered a residual power –In most circumstances, that is… –Power.
FOR CLERKS AND RECORDERS  Planning Commission – public meeting and a public hearing  City Council – public hearing  Must contain: - a map of expansion.
North Dakota Water Funding 2013 Legislative Session May 13, 2013 NDACo Legislative Wrap-up Jean Schafer – North Dakota Water Coalition.
A Road Map to the Franchise Process Don Stursma Manager Safety & Engineering Iowa Utilities Board.
Real Estate Investment Chapter 2 Land Use Controls © 2011 Cengage Learning.
Modern Real Estate Practice in Illinois Chapter 10: Real Estate Taxes and Other Liens.
ANNEXATION. WHY ANNEXATION CITIES PAY FOR A WIDE ARRAY OF SERVICES AND FACILITIES THAT BENEFIT ENTIRE REGIONS AND THE ENTIRE STATE. MOST STATES RECOGNIZE.
Unit 9: Legal Issues. Legal Issues Video Time length 11:13.
C U S T O M E R D R I V E N. B U S I N E S S M I N D E D. Department of Licensing & Regulatory Affairs Bureau of Construction Codes Keith E. Lambert, P.S.,
After-the-Fact Conservation Area Impact Permit Request* Keene’s Pointe Community Association, Inc. District 1 November 1, 2011 *Postponed from the December.
Other amendments. Automatic stay scope 11 U.S.C. § 362(a): Except as provided in subsection (b) of this section, a petition...operates as a stay, applicable.
Modern Real Estate Practice in Pennsylvania 12th Edition Chapter 2: Land-Use Controls and Property Development.
Modern Real Estate Practice in Illinois Eighth Edition Chapter 10: Real Estate Taxes and Other Liens ©2014 Kaplan, Inc.
Folsom Water Supply Service Area for Aerojet Properties ( Aerojet-Industrial, Westborough & Easton Place/Glenborough Areas) June 26, 2007.
ANNEXATION Statutory Overview July 19, 2011 David L. Yearout, AICP, CFM.
Water Rights: Change of Ownership Stephen Kinal Water Rights Availability Division Water Rights Compliance Assurance Team.
Conflicts of Interest: Beyond the Basics March 2016 Greg Moser; John LemmoJulie Umansky Procopio, Cory, Hargreaves & Savitch LLP California Charter Schools.
DRAINAGE PRESENTATION City of Fair Oaks Ranch. Use of Public Funds Tex. Const. art. III, § 52 Places a restriction on the power of the Legislature to.
Babc.com ALABAMA I DISTRICT OF COLUMBIA I MISSISSIPPI I NORTH CAROLINA I TENNESSEE Overview of Industrial Development Board TIFs The City of Spring Hill.
Office of Management and Enterprise Services Central Purchasing Division 2013/2014session legislative changes The Central Purchasing Act 74 O.S. §85.1.
Contractor’s Exemption Legislative Act No
Public Utility Law Section Annual Seminar
SPECIAL DISTRICTS AVIK BONNERJEE, R.T.A. TOMMY LEE, R.T.A.
Presented by: Deborah Early Icenogle Seaver Pogue, P.C.
Hudson Wetlands Protection Bylaw
CCN Decertification and Compensation Potential Solutions
THE TML Titanic and the Iceberg Annexation Reform
PROPERTY .
Environmental Assessment PUC Application Process
Sovereign Immunity and Contracts
CCN Update Panel The CCN Holder’s Perspective on Compensation
Sovereign Immunity and Contracts
What is OAL? The Office of Administrative Law (OAL) ensures that agency regulations are clear, necessary, legally valid, and available to the public. OAL.
Presentation transcript:

Securing Water Supplies for New Development Leonard H. Dougal Jackson Walker L.L.P. (512) Austin Bar Association Real Estate Law Group November 2008

Introduction Retail Water Service and CCNs –CCN Basics –Municipal Growth and CCN Conflicts –Expedited CCN Release Amenity Lakes Contract Enforceability

Types of Retail Public Utilities Providing Water/Sewer Municipalities Taxing Districts (MUDs, WCIDs, etc) Investor-Owned Utilities Non-Profit WSCs/Special Utility Districts Counties

Certificates of Convenience and Necessity CCN MunicipalitiesOptional Districts (MUDs, WCIDs, SUDs)Optional Investor-owned UtilitiesRequired Non-Profit WSCsRequired CountiesOptional

What Is A CCN? Certificate of Convenience and Necessity — A permit issued by the [TCEQ] which authorizes and obligates a retail public utility to furnish, make available, render, or extend continuous and adequate retail water or sewer utility service to a specified geographic area. 30 TAC §291.3

CCN Service Exemptions Private Water Well Service to only one other property (mother-in- law) Incident of tenancy Provision without compensation Non-potable water

Municipal Growth and CCN Conflicts Municipality Has Authority to Serve Beyond Corporate Limits But, Prohibited from Serving in Another Utility’s CCN Annexation Does Not alter CCN Boundaries Incumbent CCN Holder May Continue to Serve Annexed Areas

Municipal Service Extensions Into Another’s CCN By Agreement – Water Code § Annexation and Voluntary Transfer – Water Code §13.255(a) Annexation and “Condemnation” of CCN Water Code §13.255(b) –Only WSCs, SUDs, FWSDs –Not IOUs –Payment of Compensation Required –Federal Debt Restrictions

CCN Reform HB 2876 (2005) Notice to Landowner of CCN Application for Amendment 25+ Acres Landowner Petition for Expedited Release from CCN Filing of CCN Boundaries in County Real Property Records Voided Municipal CCNs Beyond ETJ –Revised by SB 3 (2007)

CCN Decertification By TCEQ Water Code Involuntary Decertification –Failure to Provide Continuous and Adequate Service Landowner’s Expedited Release Petition –New in 2005 –Largely Untested

Expedited CCN Release Process and Issues Landowner 50+ Acres Requested Service from CCN Holder CCN Holder’s Response is Unacceptable Has Service Commitment from an Alternative Utility File Petition at TCEQ “Just and Adequate” Compensation to CCN Holder

Expedited Release Petition – Fundamental Issues Explanation Why the CCN Holder’s Response is Unacceptable: –Refused to Provide Service; –Not Capable of Providing Service; or –Conditions the Service on Payment of Costs Not Properly Allocable Directly to the Petitioner’s Service Request

Expedited Release TCEQ’s Role APA Contested Hearing Process Does Not Apply to Petition Informal Agency Action ED “Shall Grant” Petition, Unless –Petitioner Failed to Satisfy Rule; and –ED Supports Findings For Each Element –Based Solely on Information Provided by Petitioner and Incumbent Utility Commission Decision May Not Be Appealed

Federal Debt Protection 7 U.S.C. §1926(b) “The service provided or made available [by a federally indebted rural water] association shall not be curtailed or limited by inclusion of the area... within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan.”

Expedited Release Meets Federal Debt Typical 1926(b) Case – Municipal Encroachment or Competition “Does § 1926(b) also preclude a state regulatory agency from modifying the service area of a federally indebted utility. But we leave that issue for another day” North Alamo Water Supply Corporation v. City of San Juan, (5th Cir. 1995)

Application of Jona Acquisition Inc Travis County

Expedited Release Summary Usefulness of Expedited Release Process ED’s Decisions – Two CCN Releases Granted “Public” Data-Base of CCN Valuations Legislative Adjustments?

Amenity Lakes

Amenity Lakes – Water Rights Permitting Unless exempt, TCEQ Water Rights Permit Required to Divert, Use or Impound State Water (Water Code ) State Water – The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake... and the stormwater, floodwater, and rainwater of every river, natural stream, and watercourse in the state. ( 30 TAC 297.1) Diffuse Surface Water - belongs to the owner of the land on which it gathers... prior to its passage into a natural watercourse. Turner v. Big Lake Oil Co. (Tex. 1936).

Amenity Lakes D&L Impoundments Pre-Existing Exempt D&L Impoundments –200 acre-feet or less –Wildlife Exemption (Added 2001) New Development – Residential Subdivision “Domestic Use” Definition Includes “Water Recreation” Mere Subdivision of Land Does Not Reduce Downstream Water Supply

Amenity Lakes – Permit Issues TCEQ Asserts: “Conversion” of On-Channel D&L Exempt to Amenity Lake Requires Water Rights Permit –D&L/Wildlife Exemptions Not Applicable to “Commercial Operation” –Housing Development = “Commercial Operation” –Permit for Recreational Use

Amenity Lakes - Permitting Westerra Stonebridge Rulemaking Petition –Pre-existing Exempt Reservoir –Corps CWA 404 Approval –Petition Denied by TCEQ Permit Issues –Difficult –Lack of Unappropriated Water –Cost/Availability of Supplemental Water (Purchased water, Groundwater, Diffuse Surface Water) –Protest by Senior Water Rights Holders

Amenity Lake Supplied by Groundwater

Contract Enforceability Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) –“Sue and be sued” is not a clear and unambiguous waiver of sovereign immunity –Overruled Missouri Pacific Railroad (Tex. 1970) HB 2039 (2005) only waives immunity for parties who contract to provide goods or services to local governments (Local Gov’t Code § et seq.) How to enforce a water supply contract with a river authority, water district, city, etc.?

Contract Enforceability Water Districts Water Code §49.066(a): A district may sue and be sued in the courts of this state in the name of the district by and through its board. A suit for contract damages may be brought against a district only on a written contract of the district approved by the district’s board. Four Recent Cases Hold Section (a) Is Not a Waiver See, Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 32 (Tex. App.—San Antonio 2006, pet. filed)

QUESTIONS?