                                                                                                    ACCEPTED
                                                                                                14-15-00031-CV
                                                                                FOURTEENTH COURT OF APPEALS
                                                                                             HOUSTON, TEXAS
                                                                                          12/4/2015 11:50:08 AM
                                                                                          CHRISTOPHER PRINE
                                                                                                         CLERK




Mr. Hill’s direct line: (512) 322-5855
                                                                              FILED IN
                                                                       14th COURT OF APPEALS
                                         December 4, 2015                 HOUSTON, TEXAS
                                                                       12/4/2015 11:50:08 AM
                                                                       CHRISTOPHER A. PRINE
                                                                                Clerk
The Honorable Christopher A. Prine                     VIA ELECTRONIC FILING
Clerk, Fourteenth Court of Appeals
301 Fannin, Suite 245
Houston, Texas 77002

Re:       Case No. 14-15-00031-CV; R.E. Janes Gravel Co. v. Zachary Covar, et al. and the
          City of Lubbock.

Dear Mr. Prine:

          Please accept and file this response to Appellant’s post-submission brief.

        Dr. Kathy Alexander, an unchallenged expert witness for the TCEQ in this case,
testified during the contested case hearing that “the water availability model [TCEQ
uses] for new appropriations doesn’t include return flows.” 32 AR 2 at 323:19-21.
Appellant did not introduce any evidence during the contested case hearing disputing
this fact.

       The document that Appellant relies on in its post-submission brief (1) was never
offered or admitted into evidence and (2) reflects out-of-court statements that, even if
true, describe law and policy that existed on December 13, 1996—before the Texas
Legislature created the law that governs the City’s 3985A Application. Cf. date of
enrollment of Act of June 1, 1997, 75th Leg., R.S., ch. 1010, § 2.06, 1997 Tex. Gen. Laws
3610, 3620 (codified at Tex. Water Code § 11.042(b) and (c)). If Appellant’s document
was in the evidentiary record, it nevertheless would not provide the Court with
meaningful guidance regarding the import of Sections 11.042(b) and (c) of the Texas
Water Code. Furthermore, it would not discount the weight of Dr. Alexander’s
referenced testimony regarding the Brazos River water availability model as it functions
following enactment of Senate Bill 1 in 1997. Act of June 1, 1997, 75th Leg., R.S., ch.
1010, 1997 Tex. Gen. Laws 3610.

       Appellant has no right to the City’s discharges from Outfall 001. The Court is
able to reach this conclusion based on both the evidence in the record and the law. The
evidence shows that the discharges from Outfall 001 are sourced predominantly from
the City’s private groundwater, 19 AR COL-1 at 12:7-11, 14:11-15; 20 AR COL-9 at 11:10-
13, and to a lesser degree from water the City imports from another river basin, 19 AR
COL-1 at 14:10-11; 20 AR COL-9 at 10:4-7, 11:9-10. Appellant has no right to either
source of water. 19 AR COL-1 at 12:7-11; 19 AR COL-2; 20 AR COL-9 at 10:11-13, 11:5-8.
Appellant has no right to the treated wastewater effluent derived from either source of
water before it is discharged at Outfall 001. 10 AR COL-2; 20 AR COL-9 at 14:11-12; 32
AR 2 at 290:22 – 291:13.
The Honorable Christopher A. Prine
December 4, 2015
Page 2 of 2


       The law provides that Appellant has no right to the City’s treated wastewater
effluent once it is discharged at Outfall 001 given the City’s 3985A Application, and the
TCEQ’s eventual issuance of the 3985A Amendment. Tex. Water Code Ann. § 11.042(b)
and (c). If Appellant had such a water right, the water right would contain an “express
provision that the water available for the water right is dependent on potentially
interruptible return flows or discharges.” 32 AR 2 at 290:22 – 291:13; 30 Tex. Admin.
Code § 297.42(g). Appellant’s water right contains no such provision. 32 AR 2 at 295:16
– 299:20; 22 AR Janes-1 (Certificate of Adjudication No. 12-3710, based on conditions
existing as of April 17, 1968). In fact, no water right in the entire Brazos River Basin
contains any such provision regarding the City’s discharges at Outfall 001. 20 AR COL-9
at 14:11-12; 32 AR 2 at 291:11-13.

       Finally, the City does not need to cease discharges temporarily in order to obtain
authorization under Section 11.042(c). The City understood the Court’s inquiry
regarding this hypothetical as a test of Appellant’s incredible claim to the City’s
discharges at Outfall 001. The discharges are within the complete control of the City.
Appellant has no right to compel the City to discharge from Outfall 001. Appellant
likewise has no right to interfere with the City’s diversions under the 3985A
Amendment.

      For these reasons, and for the reasons addressed in the City’s briefing and oral
argument in this case, the City respectfully requests that the Court affirm the decision of
the TCEQ to issue the 3985A Amendment.

                                          Respectfully submitted,



                                          /s/ Jason Hill______________
                                          Jason T. Hill
                                          Attorney for City of Lubbock

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