                                                                                      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:




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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
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          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.

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