    Case: 18-50655   Document: 00515095388    Page: 1   Date Filed: 08/28/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit

                                                                  FILED
                               No. 18-50655                 August 28, 2019
                                                             Lyle W. Cayce
                                                                  Clerk


LEAGUE OF UNITED LATIN AMERICAN CITIZENS, (LULAC); MARIA
MARTINEZ; JESSE ALANIZ, JR.; RAMIRO NAVA,
                                        Plaintiffs–Appellants,
versus
EDWARDS AQUIFER AUTHORITY,
                                        Defendant–Appellee,
CITY OF SAN MARCOS; CITY OF UVALDE; UVALDE COUNTY;
NEW BRAUNFELS UTILITIES, also known as NBU;
GUADALUPE-BLANCO RIVER AUTHORITY,
                                        Intervenor Defendants–Appellees.




               Appeal from the United States District Court
                    for the Western District of Texas




Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     The Edwards Aquifer Authority (“EAA”) is a conservation and reclama-
tion district established to regulate the groundwater of the Edwards Aquifer
for the benefit of dependent users and species. The League of United Latin
American Citizens and its Bexar County members Maria Martinez, Jesse
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                                 No. 18-50655
Alaniz, Jr., and Ramiro Nava (collectively, “LULAC”) sued the EAA, asserting
that its electoral scheme violated the “one person, one vote” principle of the
Equal Protection Clause of the Fourteenth Amendment. Claiming to be a
special-purpose unit of government, the EAA countered that it was exempt
from such strictures. The district court granted summary judgment for the
EAA, finding that its limited functions disproportionately impact those most
empowered in its elections and that its apportionment scheme has a rational
basis. We agree and affirm.

                                       I.
      The Edwards Aquifer “is a unique underground system of water-bearing
formations.” Barshop v. Medina Cty. Underground Water Conservation Dist.,
925 S.W.2d 618, 623 (Tex. 1996). Water enters the aquifer as rainfall and
surface water and exits through well-withdrawals and spring discharges. Id.
As “the primary source of water for south central Texas,” it is “vital to the
residents, industry, and ecology of the region, the State’s economy, and the
public welfare.” Edwards Aquifer Auth. v. Chem. Lime, Ltd., 291 S.W.3d 392,
394 (Tex. 2009).

      During the 1980s, overdrafting of the aquifer threatened various species
that “rel[ied] upon adequate and continuous natural flows of fresh water . . . as
an environment for their survival.” Sierra Club v. Lujan, No. MO-91-CA-069,
1993 WL 151353, at *5 (W.D. Tex. Feb. 1, 1993). At the time, the Edwards
Underground Water District (“EUWD”) administered the aquifer. But it ulti-
mately “lacked the regulatory authority the Legislature came to believe was
essential.” Chem. Lime, 291 S.W.3d at 394. Responding to successful litigation
under the Endangered Species Act of 1973, the Texas legislature replaced the
EUWD with the EAA in 1993, vesting it with “broad powers ‘for the effective
control of the resource to protect terrestrial and aquatic life, domestic and

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                                       No. 18-50655
municipal water supplies, the operation of existing industries, and the econ-
omic development of the state.’” 1

       Under the Edwards Aquifer Authority Act, 2 the EAA possesses “all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste or
pollution of water in, the aquifer.” Act § 1.08(a). Those powers include the
ability to hire employees; enter contracts; issue grants or loans for water con-
servation and reuse; finance, construct, and operate dams and reservoirs;
assert the power of eminent domain; and otherwise adopt and enforce rules
necessary to execute its functions. See id. § 1.11.

       The Act prohibits the withdrawal of aquifer water without a permit,
limits the annual amount of permitted withdrawals, “and gives preference to
‘existing user[s]’ . . . who ‘withdr[ew] and beneficially used underground water
from the aquifer on or before June 1, 1993.’” Chem. Lime, 291 S.W.3d at 394–
95 (quoting Act § 1.03(10)); see also Act §§ 1.14(c), 1.15. An existing user who
submits “a declaration of historical use of underground water,” pays an appli-
cation fee, and “establishes by convincing evidence beneficial use of” aquifer




       1 Chem. Lime, 291 S.W.3d at 394 (citation omitted); see also Barshop, 925 S.W.2d
at 624 (“The [EAA] supersedes the [EUWD], which previously possessed limited power to
govern the aquifer.”).
       2Act of May 30, 1993, 73d Leg., R.S., ch. 626, 1993 Tex. Gen. Laws 2350, amended by
Act of May 16, 1995, 74th Leg., R.S., ch. 524, 1995 Tex. Gen. Laws 3280; Act of May 29, 1995,
74th Leg., R.S., ch. 261, 1995 Tex. Gen. Laws 2505; Act of May 6, 1999, 76th Leg., R.S., ch.
163, 1999 Tex. Gen. Laws 634; Act of May 25, 2001, 77th Leg., R.S., ch. 1192, 2001 Tex. Gen.
Laws 2696; Act of May 28, 2001, 77th Leg., R.S., ch. 966, §§ 2.60–2.62, 6.01–6.05, 2001 Tex.
Gen. Laws 1991, 2021, 2075; Act of June 1, 2003, 78th Leg., R.S., ch. 1112, § 6.01(4), 2003
Tex. Gen. Laws 3188, 3193; Act of May 23, 2007, 80th Leg., R.S., ch. 510, 2007 Tex. Gen.
Laws 900; Act of May 28, 2007, 80th Leg., R.S., ch. 1351, §§ 2.01–2.12, 2007 Tex. Gen. Laws
4612, 4627; Act of May 28, 2007, 80th Leg., R.S., ch. 1430, §§ 12.01–12.12, 2007 Tex. Gen.
Laws 5848, 5901; Act of May 21, 2009, 81st Leg., R.S., ch. 1080, 2009 Tex. Gen. Laws 2818;
Act of May 20, 2013, 83d Leg., R.S., ch. 783, 2013 Tex. Gen. Laws 1998 [hereinafter the “Act”].
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water is entitled to a permit. 3 Subject to the annual cap on withdrawals, the
EAA may grant “additional regular permits” after processing existing users’
applications. Act § 1.18(a). Currently, there are fewer than two thousand
active permit holders.

       Permit holders “may not violate the terms or conditions of the permit” or
use aquifer water outside the boundaries of the EAA. Id. §§ 1.34(a), 1.35(b).
They must meter their water usage, avoid waste, and implement conservation
plans approved by the EAA. 4 During a drought, the EAA may impose “utility
pricing . . . to limit discretionary use by the customers of water utilities” and
require further “reduction of nondiscretionary use by permitted or contractual
users.” Act § 1.26(a)(3)–(4).

       The EAA has adopted rules to preserve the quality of water in the aqui-
fer. Specifically, the EAA regulates the construction, operation, and mainten-
ance of wells that draw from the aquifer or are drilled through it. See EAA
Rules §§ 713.200–203. The rest of its regulations, however, are limited to the
recharge 5 and contributing zones, 6 where pollutants are most likely to seep
into the aquifer. Within those regions, the EAA mandates the reporting of
noxious spills and regulates facilities housing toxic substances for commercial
use. Id. §§ 713.400–401, 713.501. It further governs the storage of hazardous


       3 Id. § 1.16(b), (d). “Beneficial use” is defined broadly to mean “the use of the amount
of water that is economically necessary for a purpose authorized by law, when reasonable
intelligence and reasonable diligence are used in applying the water to that purpose.” Id.
§ 1.03(4).
       Id. §§ 1.23, 1.31(a), 1.35(c); see also EDWARDS AQUIFER AUTHORITY, EDWARDS
       4

AQUIFER AUTHORITY RULES § 715.106 (2013) [hereinafter “EAA Rules”].
       5 The recharge zone refers to the area where caves, sinkholes, or other permeable
features allow surface water to enter the aquifer, risking potential pollution. See EAA Rules
§ 702.1(162).
       The contributing zone encompasses the area “where runoff from precipitation flows
       6

downgradient to the recharge zone.” Id. § 702.1(52).
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substances in large aboveground and underground storage tanks in the re-
charge zone. Id. § 713.603. And it proscribes the use of coal tar-based pave-
ment sealant products in the parts of Comal and Hays Counties that overlie
the recharge and contributing zones. Id. § 713.703.

      To ensure compliance with the Act and its regulations, EAA employees
“may enter private or public property at any reasonable time,” provided they
“observe the establishment’s rules concerning safety, internal security, and fire
protection[;] . . . notify any occupant of their presence[;] and present proper
identification.” Id. § 717.104. If a violation has occurred, the EAA may sus-
pend a permit, assess an administrative penalty, or sue for an injunction or
civil penalty. Act §§ 1.36–1.38, 1.40.

      The Act explicitly prohibits the EAA from levying a property tax to
finance its operations. Id. § 1.28(a). With the approval of the state attorney
general and the Texas Commission on Environmental Quality (“TCEQ”), how-
ever, the EAA may issue revenue bonds for the purchase of land or necessary
equipment. Id. § 1.28(b)–(c). Moreover, it may “assess equitable aquifer man-
agement fees based on aquifer use.” Id. § 1.29(b). Alternatively, other water
districts located within its boundaries may contract with the EAA to pay its
expenses through taxes collected from water users in those districts. Id. But
in any case, the EAA may not charge “more than is reasonably necessary for
[its] administration.” Id.

      The EAA’s jurisdiction covers eight counties representing three distinct
regions: (1) the western agricultural counties of Atascosa, Medina, and Uvalde,
where approximately 117,000 persons dwell; (2) the eastern spring-flow coun-
ties of Caldwell, Comal, Guadalupe, and Hays, where roughly 435,000 people
live; and (3) the urban county of Bexar, which has over 1.7 million residents.
Initially, the Act provided that each region would appoint three members to

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the EAA board of directors. See Act of May 30, 1993, 73d Leg., R.S., ch. 626,
§ 1.09, 1993 Tex. Gen. Laws 2350, 2356–57. But the Department of Justice
(“DOJ”) denied preclearance under § 5 of the Voting Rights Act of 1965 “due to
the appointment method of selecting the board of directors.”           Barshop,
925 S.W.2d at 625.    In consultation with the DOJ, the Texas legislature
amended the Act in 1995 to establish a board of directors comprised of fifteen
popularly elected members and two appointed non-voting members. Act § 1.09.
Under the current scheme, the agricultural and spring-flow counties elect four
directors each, whereas Bexar County elects seven directors. Id. § 1.093.

                                      II.
      LULAC sued the EAA in 2012, claiming, inter alia, that its electoral sys-
tem contravened the principle of “one person, one vote.” Conceding that its
electoral districts were malapportioned, the EAA rejoined that, as a special-
purpose district, it was exempt from the “one person, one vote” requirement.
The San Antonio Water System filed a complaint as plaintiff-intervenor, and
the City of San Marcos, the City of Uvalde, Uvalde County, New Braunfels
Utilities, and the Guadalupe-Blanco River Authority intervened as defendants.
Both sides moved for summary judgment.

      The district court denied LULAC’s motion and granted summary judg-
ment for the EAA, noting that its “power and authority [wa]s limited to car-
rying out its narrowly defined statutory purposes to manage, protect, preserve,
and conserve the water in the aquifer.” Given that the per capita usage of
aquifer water was significantly higher in the agricultural and spring-flow
counties than in Bexar County, the court explained that the EAA’s activities
disproportionately affected those most advantaged in its elections. It therefore
held that, under Salyer Land Co. v. Tulare Lake Basin Water Storage District,
410 U.S. 719 (1973), and Ball v. James, 451 U.S. 355 (1981), the EAA is not

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                                  No. 18-50655
subject to the strictures of “one person, one vote.” Additionally, the court con-
cluded that the apportionment scheme was rationally related to the EAA’s stat-
utory goals in balancing the competing interests of the three regions. LULAC
appeals.

                                        III.
      At the heart of democratic society is “[t]he right to vote freely for the
candidate of one’s choice.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). That
right, however, “can be denied by a debasement or dilution of the weight of a
citizen’s vote just as effectively as by wholly prohibiting the free exercise of the
franchise.” Id. “[A]s a basic constitutional standard,” legislative districts must
“be apportioned on a population basis.” Id. at 568; see also Wesberry v. Sanders,
376 U.S. 1, 8–9 (1964).

      In Avery v. Midland County, 390 U.S. 474 (1968), the Court extended the
principle of “one person, one vote” to the elections of local government officials.
That case concerned the Midland County Commissioners Court, which pos-
sessed the authority to appoint minor officials; enter contracts; issue bonds; set
the county tax rate; adopt a county budget; conduct elections; administer public
welfare services; establish a public housing authority; fix school district boun-
daries; and construct and operate a courthouse, jail, hospital, airport, libraries,
bridges, and roads. Id. at 476–77. Though recognizing that the Constitution
is “not [a] roadblock[] in the path of innovation, experiment, and development
among units of local government,” the Court held that “units with general gov-
ernmental powers over an entire geographic area [may] not be apportioned
among single-member districts of substantially unequal population.”              Id.
at 485–86.   Because the Commissioners Court possessed “the authority to
make a substantial number of decisions that affect all citizens,” the Court
determined that its elections must comply with the “one person, one vote”

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requirement. Id. at 484. Nevertheless, the Court surmised the outcome might
be different “[w]ere the Commissioners Court a special-purpose unit of govern-
ment assigned the performance of functions affecting definable groups of con-
stituents more than other constituents.” Id. at 483–84.

      The Court reached a similar conclusion in Hadley v. Junior College Dis-
trict, 397 U.S. 50 (1970). There, the plaintiffs claimed they had been denied
an equal right to vote for junior college trustees, who were authorized to make
employment decisions, form contracts, issue bonds, levy taxes and fees, super-
vise and discipline students, review petitions to annex school districts, con-
demn private property, “and in general manage the operations of the junior
college.” Id. at 53. The Court agreed. Although those powers were “not fully
as broad as those of the” Commissioners Court, “the trustees perform[ed] im-
portant governmental functions” that were “general enough and ha[d] suffi-
cient impact” to trigger the principle of “one person, one vote.” Id. at 53–54.
Yet once again, the Court acknowledged the possibility “that there might be
some case in which a State elects certain functionaries whose duties are so far
removed from normal governmental activities and so disproportionately affect
different groups that a popular election in compliance with Reynolds . . . might
not be required.” Id. at 56.

      Such a case arose in Salyer. At issue was the Tulare Lake Basin Water
Storage District, which covered 193,000 acres of California farmland and con-
tained only seventy-seven residents. Salyer, 410 U.S. at 723. Though “vested
with some typical governmental powers”—including the ability to hire and fire
employees, make contracts, issue bonds, condemn property, and cooperate with
other agencies—the Tulare District “ha[d] relatively limited authority.” Id.
at 728 & n.7. “Its primary purpose, indeed the reason for its existence, [wa]s
to provide for the acquisition, storage, and distribution of water for farming in

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the Tulare Lake Basin.” Id. at 728. Notably, the district “provide[d] no other
general public services such as schools, housing, transportation, utilities,
roads, or anything else of the type ordinarily financed by a municipal body.”
Id. at 728–29.

      Equally importantly, “its actions disproportionately affect[ed] land-
owners.” Id. at 729. The entire cost of its operations was assessed against the
land in proportion to the benefits received, and any delinquent payments be-
came a lien on the land itself. Id. “In short, there [wa]s no way that the
economic burdens of district operations c[ould] fall on residents qua residents
. . . .” Id. Consequently, the Court held that the district was not subject to the
strict requirements of Reynolds. Id. at 728. Instead, the Court found a rational
basis for permitting only landowners to vote in the district’s elections and for
apportioning such votes according to the assessed valuation of the land. 7

      In Ball, 451 U.S. at 357, the Court confronted another water reclamation
district that restricted the franchise to landowners and apportioned voting
power based on the amount of land a voter owned. Unlike the relatively small
Tulare District, however, the Salt River Project Agricultural Improvement and
Power District covered nearly half the population of Arizona. Id. at 365. And
whereas the operating costs of the Tulare District were assessed against the
land, the Salt River District funded its activities through the sale of electric
power and had become one of the largest electric providers in the state. Id.
at 365–66.    But those “distinctions d[id] not amount to a constitutional
difference.” Id. at 366.

      After all, the Salt River District could not impose ad valorem property or


      7   Salyer, 410 U.S. at 730–31, 33–34. On the same day the Court decided Salyer, it
upheld a similar scheme in Associated Enterprises, Inc. v. Toltec Watershed Improvement
District, 410 U.S. 743 (1973) (per curiam).
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sales taxes; enact laws governing the conduct of citizens; maintain streets or
schools; or provide sanitation, health, or welfare services. Id. Furthermore,
the district’s water functions were “relatively narrow” because it “d[id] not own,
sell, or buy water, nor d[id] [it] control the use of any water” once distributed.
Id. at 367. Rather, it “simply store[d] water behind its dams, conserve[d] it
from loss, and deliver[ed] it through project canals.” Id. Moreover, “neither
the existence nor size of the District’s power business” was “constitutionally
relevant” because “the provision of electricity is not a traditional element of
governmental sovereignty” and, in any event, was “incidental” to the district’s
primary purpose of conserving and delivering water. Id. at 367–68.

      As in Salyer, the Court also found that the Salt River District dispropor-
tionately affected “the specific class of people whom the system ma[de] eligible
to vote.” Id. at 370. Only landowners committed capital to the district, and
only they were subject to liens and acreage-based taxes. Id. Hence, the Court
upheld the district’s voting scheme “because it [bore] a reasonable relationship
to its statutory objectives.” Id. at 371.

      The EAA does not contest that its electoral scheme dilutes the voting
power of Bexar County residents. Instead, the parties dispute whether the
Salyer-Ball exception extends to an electoral scheme that enfranchises all
voters and, if so, whether the EAA satisfies the two prongs of the exception.

                                        A.
      LULAC maintains that the exception is limited to cases such as Salyer
and Ball in which the franchise is restricted. LULAC reasons that where, as
here, the franchise is open to all, LULAC contends that the electoral scheme
must conform to the fundamental principle of “one person, one vote.” To hold
otherwise, LULAC insists, would be to invert the narrow exception for the gen-
eral rule.
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       Nevertheless, both Avery and Hadley contemplated that the exception
could apply to an election open to all. Although Avery, 390 U.S. at 483–84,
involved an open-franchise election, the Court observed that if the Commis-
sioners Court were a special-purpose district, it “would have to confront the
question whether such a body may be apportioned in ways which give greater
influence to the citizens most affected by the organization’s functions.” Simi-
larly, in Hadley, 397 U.S. at 56, the Court remarked “that a popular election in
compliance with Reynolds . . . might not be required” for officials “whose duties
are so far removed from normal governmental activities and so disproportion-
ately affect different groups.” (Emphasis added.)

       Relatedly, in Town of Lockport v. Citizens for Community Action at the
Local Level, Inc., 430 U.S. 259, 261–62 (1977), the Court upheld an electoral
scheme for adopting a charter form of county government that enfranchised all
voters but weighted the votes from city and county dwellers differently. In
doing so, the Court analogized to Salyer and determined that the interests of
city and county residents were sufficiently different to justify the disparity in
voting strength. Id. at 266–69. Although Lockport is not directly on point, 8 it
suggests that the exception enunciated in Salyer and Ball may apply to a
general election.

       LULAC rejoins that, in Board of Estimate v. Morris, 489 U.S. 688 (1989),
the Court “did not purport to examine whether” the Salyer-Ball exception
applied “most logically because . . . the franchise [there] was unrestricted.” But


       8 Two features distinguished Lockport from Salyer. First, unlike the Tulare District
in Salyer, the county government in Lockport, 430 U.S. at 260, possessed “general govern-
ment powers.” Second, whereas Salyer concerned the election of a board of directors, Lockport
involved “a ‘single-shot’ referendum” in which “the expression of voter will [wa]s direct, and
there [wa]s no need to assure that the voters’ views w[ould] be adequately represented
through their representatives in the legislature.” Id. at 266. Hence, though Salyer was in-
structive, the Court explained that it “d[id] not resolve the issues in [Lockport].” Id. at 268.
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that is a complete mischaracterization of Morris. In holding that elections to
the Board of Estimate of the City of New York must comport with the “one
person, one vote” requirement, the Court never implied that the exception is
relevant only in a limited-franchise context. Instead, the Court performed the
same analysis in Salyer and Ball to determine that the board was an entity of
general governmental power. Indeed, the Court emphasized that the board
exercised “a significant range of functions common to municipal governments,”
including the authority to calculate property taxes, approve the city budget,
and manage land use. Id. at 694–95. Such “‘powers [we]re general enough and
ha[d] sufficient impact throughout the district’ to require that elections to the
body comply with equal protection strictures.” Id. at 696 (quoting Hadley,
397 U.S. at 54). Far from supporting LULAC’s strained view of Salyer and
Ball, Morris thus indicates that the exception may apply to a popular election
of a local body of government. 9

       At least two circuits have so held. In Pittman v. Chicago Board of Edu-
cation, 64 F.3d 1098, 1101–03 (7th Cir. 1995), the court ruled that the elections
of “local and specialized” school councils in Chicago were not subject to the “one
person, one vote” requirement. Importantly, the electoral scheme at issue
granted the franchise to “all adult residents of the school’s district,” as well as
to “all parents whether or not residents.” 10 Similarly, in Education/Instruc-
cion, Inc. v. Moore, 503 F.2d 1187, 1188 (2d Cir. 1974) (per curiam), the court



       9LULAC likewise misreads Vander Linden v. Hodges, 193 F.3d 268 (4th Cir. 1999).
That court concluded that South Carolina’s county legislative delegations fell “within the
scope of the one person, one vote mandate,” given their array of “fiscal, regulatory, and
appointive functions.” Id. at 277–78.
       10Pittman, 64 F.3d at 1100. Cf. Baker v. Reg’l High Sch. Dist. No. 5, 520 F.2d 799,
801–03 (2d Cir. 1975) (applying the special-purpose exception to the popular elections of re-
gional school boards but ultimately finding that the boards engaged in “broad . . .
governmental activity”).
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upheld a state statute establishing regional councils of government comprised
of the chief elected official from each town. As the court explained, the councils
mainly performed advisory and investigative tasks and thus “d[id] not have
even the minimal governmental powers found insufficient to invoke the one
man, one vote principle in . . . Salyer.” Id. at 1189.

      We therefore decline LULAC’s invitation to cabin the Salyer-Ball excep-
tion to cases in which the franchise is restricted. LULAC claims that “[t]o read
this exception any more broadly [would] divorce the rule from the unique fac-
tual moorings of Salyer and Ball” and would permit the rare exception to swal-
low the general requirement of “one person, one vote.” But notably, the Court
in those cases upheld an electoral system that not only weighted votes differ-
ently, but also denied the franchise entirely to certain voters. In contrast, all
voters may participate in elections to the EAA board of directors, albeit with
unequal voting power. Consequently, this case represents a narrower depar-
ture from the principle of “one person, one vote” than in Salyer or Ball.

                                        B.
      Under the Salyer-Ball framework, we must first consider whether the
EAA serves a “special limited purpose.” Salyer, 410 U.S. at 728. Much like the
water storage districts in those cases, the EAA exercises “some typical govern-
mental powers.” Id. at 728 & n.7; see also Ball, 451 U.S. at 366 n.11. For
example, it may hire employees; enter contracts; administer grants or loans for
water conservation and reuse; issue revenue bonds for the purchase of land or
necessary equipment; design and operate dams and reservoirs; and condemn
private property. See Act §§ 1.11, 1.28(b). Yet the EAA does not engage in any
general governmental activities. It cannot levy ad valorem property or sales
taxes or oversee such public functions as schools, housing, zoning, transporta-
tion, roads, or health and welfare services. See Morris, 489 U.S. at 694–96;

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Ball, 451 U.S. at 366; Salyer, 410 U.S. at 728–29. Rather, its powers are ex-
pressly tailored to protecting the quantity and quality of groundwater in the
Edwards Aquifer and do not extend to any surface water or other aquifers
located within its jurisdiction. 11

       As LULAC concedes, the EAA largely accomplishes its statutory pur-
poses by regulating fewer than two thousand permit holders. LULAC avers
that, in issuing permits and imposing conditions thereon, the EAA not only
“decid[es] who can access the groundwater” in the first instance, but also con-
trols the use of the water once withdrawn. But contrary to LULAC’s depiction,
the EAA’s discretion to grant a permit is quite limited. The Act itself caps the
total amount of permitted withdrawals each year. Act § 1.14(c). Additionally,
the Act “entitle[s]” an existing user to a permit upon filing a declaration of
historical use, paying an application fee, and establishing a beneficial use for
the water. 12

       Similar to the district in Ball, 451 U.S. at 367, the EAA “do[es] not own,
sell, or buy water.” Rather, Texas landowners possess the groundwater in
place beneath their property. Edwards Aquifer Auth. v. Day, 369 S.W.3d 814,
838 (Tex. 2012). Although the EAA may place certain conditions on permit
holders, it does so only as necessary to fulfill its legislative mandate to conserve
aquifer water. For instance, the EAA requires permit holders to meter their
water usage, avoid waste, implement conservation plans, and use aquifer
water within the boundaries of the EAA. Act §§ 1.23, 1.31(a), 1.34(a), 1.35(c).
It also proscribes landscape watering during daytime hours except “with a


       11See Act § 1.08(b) (“The [EAA’s] powers . . . apply only to underground water within
or withdrawn from the aquifer. This subsection is not intended to allow the [EAA] to regulate
surface water.”).
       12 See Chem. Lime, 291 S.W.3d at 395; see also Act § 1.16(d) (providing that the EAA
“shall grant a[] . . . permit” if those conditions are met (emphasis added)).
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                                       No. 18-50655
hand-held hose or a soaker hose.” EAA Rules § 715.126. And during a drought,
the EAA may require permit holders to adopt utility pricing and to reduce even
nondiscretionary uses of aquifer water. Act § 1.26(a)(3), (4). Such measures
reasonably prohibit wasteful applications of a precious resource. But by no
means does the EAA affirmatively mandate “the use to which the landowners
who are entitled to the water choose to put it.” See Ball, 451 U.S. at 367–68.

       The EAA’s obligation to prevent the pollution of the aquifer, however, is
more characteristic of the powers exercised by a general governmental entity. 13
LULAC maintains that the EAA serves broad and significant purposes in pro-
tecting the health and sanitation of the region and in governing a natural re-
source “vital to the general economy and welfare of the State of Texas.” See
Barshop, 925 S.W.2d at 623. LULAC further contends that the EAA wields
“expansive police powers” to “regulate every person in its jurisdiction directly”
by conducting compliance investigations and initiating civil suits to enforce the
Act.

       That theory is unavailing. In Ball, 451 U.S. at 367–69 & n.12, the plain-
tiffs urged that the Salt River District’s power operations and its authority over
flood control “affect[ed] all residents within District boundaries and therefore
represent[ed] the sort of important governmental function[s] that invoke[] the
Reynolds one-person, one-vote doctrine.” The Court disagreed. Because those
functions “were stipulated to be incidental” to the district’s “primary legislative
purpose . . . to store, conserve, and deliver water,” id. at 368–69, they did not
“transform the District into an entity of general governmental power,” id.
at 370. Plainly put, “[n]othing in the Avery, Hadley, or Salyer cases suggests
that . . . the breadth of economic effect of a venture undertaken by a


       13See Ball, 451 U.S. at 366 (observing that the Salt River District did not oversee any
sanitation services).
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                                     No. 18-50655
government entity as an incident of its narrow and primary governmental
public function can, of its own weight, subject the entity to the one-person, one-
vote requirements.” Id. at 370.

      As in Ball, the parties agree that the EAA’s main function is to preserve
the quantity of aquifer water by regulating permit holders. What’s more, the
EAA’s powers are secondary to the plenary environmental authority of the
TCEQ and subject to its supervision. 14 Hence, the EAA’s regulation of pol-
lutants does not render it a general governmental body because such conduct
is incidental to its primary task of administering the permit process.

      Indeed, aside from the construction and operation of aquifer wells, the
EAA’s regulation of water quality is confined to the recharge and contributing
zones, which present the highest risk of water contamination. Within those
specific zones, the EAA requires the reporting of toxic spills, EAA Rules
§ 713.401; prohibits the use of coal tar-based pavement sealant products, id.
§ 713.703; and regulates the storage of hazardous substances for commercial
purposes, id. § 713.501, or in large aboveground and underground storage
tanks, id. § 713.603. Such functions, however, are hardly “general enough [or]
have sufficient impact throughout” the jurisdiction to warrant the strictures of
“one person, one vote.” Hadley, 397 U.S. at 54. That the EAA may conduct
inspections and bring suit to enforce its regulations does not change the
analysis. See Act §§ 1.37–1.38, 1.40; EAA Rules § 717.104. As the district court
rightly noted, “[i]t would have been meaningless for the Legislature to create
the EAA without giving it the tools it needs to carry out its duties and
responsibilities.”


      14 See TEX. WATER CODE ANN. § 5.013(a) (granting the TCEQ “general jurisdiction”
over the issuance of water rights permits and pollution regulations, as well as “continuing
supervision” over conservation districts—such as the EAA—that were created under article
XVI, section 59 of the Texas Constitution).
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                                 No. 18-50655
      The holding in Kessler v. Grand Central District Management Associa-
tion, Inc., 158 F.3d 92 (2d Cir. 1998), is thus instructive. Kessler involved the
Grand Central Business Improvement District, which existed for the “limited
purpose” of “promot[ing] business activity in the district.” Id. at 94, 104. Its
management association lacked the power to impose income or sales taxes,
much less “to enact or enforce any laws governing the conduct of persons pres-
ent in the district.” Id. at 104. Though it performed some traditional govern-
mental functions “in the area of security, sanitation, and social services,” the
court held that the district’s manager was not subject to the “one person, one
vote” requirement. Id. at 105. As the court reasoned, the manager’s “respon-
sibility for these functions [wa]s at most secondary to that of [New York] City,”
and its “activities in these areas [we]re quantitatively dwarfed by those of the
City.” Id. For example, “while the [management association] contribute[d] to
the funding of a single outreach facility for homeless persons, the City ha[d] an
entire [d]epartment devoted to assisting the homeless.” Id. In much the same
way, the EAA’s conduct in regulating aquifer pollutants is limited and subser-
vient to the general authority of the TCEQ.

      Finally, LULAC complains that the EAA can “raise billions in revenue”
through aquifer management fees, utility pricing regulation, and civil penal-
ties. Although those “powers are not statutorily labeled as” a tax, LULAC
posits that “the lack of any such label is legally insignificant.”     Invoking
National Federation of Independent Business v. Sebelius, 567 U.S. 519, 564
(2012) [hereinafter NFIB], LULAC insists that the EAA’s statutory powers
share “the essential feature of any tax” in that they “produce[] at least some
revenue for the Government.”

      That reasoning stretches NFIB to its breaking point. There, the Court
held that the individual mandate of the Patient Protection and Affordable Care

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                                     No. 18-50655
Act of 2010 was functionally a tax despite its statutory label as a “penalty.”
See NFIB, 567 U.S. at 564, 574. In doing so, the Court noted that the “require-
ment to pay [wa]s found in the Internal Revenue Code and enforced by the IRS,
which . . . must assess and collect it in the same manner as taxes.” 15 The indi-
vidual mandate did not impose a “prohibitory” financial burden, nor was the
IRS permitted to collect payment by “means most suggestive of a punitive sanc-
tion, such as criminal prosecution.” Id. at 566 (citation omitted). Because the
refusal to buy health insurance incurred no other legal consequences, the
Court thus concluded that “the individual mandate . . . need not be read” as a
penalty. Id. at 567–68.

       Conversely, aquifer management fees are not calculated or collected in
the same way as is an income tax. Instead, such fees are “based on aquifer
use” and may not exceed what “is reasonably necessary for the administration
of the [EAA].” Act § 1.29(b). Although other water districts located within its
boundaries may contract with the EAA to pay expenses “through taxes in lieu
of user fees,” id., the EAA itself lacks the ability to tax, id. § 1.28(a). The same
is true of its utility pricing regulation. Though the EAA may require water
utilities to increase their pricing to limit discretionary use by their customers,
it cannot collect higher fees directly from water users. See id. § 1.26(a)(3). And
in any event, the EAA may engage in utility pricing regulation only during
“critical period[s]” of drought. Id. § 1.26(a).

      Additionally, should a violation of the Act occur, the EAA can suspend a
permit, assess an administrative penalty, or sue for an injunction or civil pen-
alty of up to $10,000 per day of a continuing infraction. See id. §§ 1.36–1.38,


      15  NFIB., 567 U.S. at 563–64 (internal quotation marks and citation omitted) (noting
that the shared responsibility payment “d[id] not apply to individuals who d[id] not pay
federal income taxes” and, for those who owed the payment, “its amount [wa]s determined by
such familiar factors as taxable income, number of dependents, and joint filing status”).
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                                 No. 18-50655
1.40. Unlike the individual mandate, those measures “attach[] negative” and
“prohibitory” legal consequences to wrongful conduct and are explicitly de-
signed to deter violations of Texas law. See NFIB, 567 U.S. at 566, 568 (citation
omitted). Hence, the EAA has no taxing power or the functional equivalent
thereof. Rather, its authority is circumscribed to attain its narrowly defined
purpose to conserve aquifer water.

                                       C.
      We next ask whether the EAA’s activities disproportionately impact the
western agricultural and eastern spring-flow counties, whose residents are
most empowered by its elections. See Ball, 451 U.S. at 370; Salyer, 410 U.S.
at 728. The EAA’s functions have a lopsided effect on those regions for at least
four reasons.

      First, per capita usage is significantly higher in those counties than in
urban Bexar County. Between 1992 and 1994—just before the adoption of the
EAA’s current electoral scheme—the average user in the western counties
pumped three to eight times more water than did the average user in Bexar
County. Similarly, the average user in the eastern counties consumed twice
as much as did the average user in Bexar County. Aquifer usage has remained
constant over the years. Between 2010 and 2012, the western counties had a
per capita usage that was roughly six to twelve times that of Bexar County,
whereas the eastern counties averaged two times the per capita usage of Bexar
County. Such disparate usage shows that residents of the agricultural and
spring-flow counties are more dependent upon the aquifer and thus are
disproportionately affected by the EAA’s regulation thereof.

      Second, under Texas law, landowners enjoy “a constitutionally compen-
sable interest in groundwater.” Day, 369 S.W.3d at 838. Notably, property
owners in the agricultural and spring-flow counties collectively possess
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                                 No. 18-50655
seventy-six percent of the land overlying the Edwards Aquifer. Consequently,
they own an outsized share of aquifer water and are disproportionately im-
pacted by the EAA’s efforts to manage it.

      Third, the EAA’s regulation of water quality has little bearing on resi-
dents of Bexar County. Its rules relating to toxic spills and facilities storing
large volumes of hazardous materials apply solely to the recharge and contrib-
uting zones. See EAA Rules §§ 713.401, 713.501. Yet only twenty-one percent
of those regions fall within Bexar County. The EAA further regulates large
aboveground and underground storage tanks in the recharge zone.
Id. § 713.603. But only ten percent of that zone intersects Bexar County. Like-
wise, the ban on coal tar-based pavement sealant products applies exclusively
in Comal and Hays Counties. Id. § 713.703. Hence, residents of the western
and eastern counties disproportionately feel the weight of the EAA’s regulatory
power.

      Fourth, one of the EAA’s central purposes—and, indeed, the impetus for
its creation—was the protection of endangered species. See Act § 1.14(a)(6)–
(7). A disproportionate number of those species, however, reside in the eastern
counties. Because that region lies downstream from the western and Bexar
counties, resident human and animal populations are directly and adversely
affected by reduced spring flow. The eastern counties and the wildlife they
contain therefore rely most on the EAA’s conservation efforts.

      In response, LULAC highlights that Bexar County residents finance
almost seventy-five percent of the EAA’s operations through the payment of
aquifer management fees. That is so largely because they purchase water at
significantly higher rates than their rural counterparts. Whereas the statute
caps fees at $2 per acre-foot of water actually withdrawn for agricultural use,
municipal and industrial users pay $84 per acre-foot of water authorized to be

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                                  No. 18-50655
pumped. See id. § 1.29(e). LULAC thus maintains that Bexar County resi-
dents, “who have the least voting power within the EAA, are disproportionately
burdened by the fees used to support it.” According to LULAC, that “inverse
relationship of burden and voting strength is the exact opposite of what” oc-
curred in Salyer and Ball, where “the groups that were electorally advantaged
. . . [also] bore the burden and reaped the benefit” of the districts’ operations.

      Yet LULAC overlooks that the burden of those costs does not fall directly
on Bexar County residents. Instead, aquifer management fees are assessed to
the San Antonio Water System which, as the permit holder, chooses to draw
water from the aquifer and to pass on such expenses to the citizens of Bexar
County. Such indirect effects are insufficient to subject the EAA to the “one
person, one vote” requirement where residents in the eastern and western
counties are directly and disproportionately impacted by its activities. The
advantaged class of voters for a special-purpose district need not “be the only
parties at all affected by the operations of the entity,” nor must “their entire
economic well-being . . . depend on that entity.” Ball, 451 U.S. at 371. Instead,
what matters is that “the effect of the entity’s operations on them [i]s dispro-
portionately greater than the effect on those” with diminished voting power.
Id. Such is the case here.

      LULAC yet emphasizes that the Act requires water utilities to raise their
prices to limit discretionary use during a drought. See Act § 1.26(a)(3). LULAC
therefore maintains that the passing along of operation costs from municipal
permit holders to their customers is “not incidental or indirect” but “is
expressly contemplated by the text of the . . . Act.”

      That claim is unpersuasive. In Salyer, 410 U.S. at 730, the Court simi-
larly had “[n]o doubt” that “residents within the district may be affected by its
activities.” But it concluded that the “argument prove[d] too much.” Id. The

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                                  No. 18-50655
Court explained, “Since assessments imposed by the district bec[a]me a cost of
doing business for those who farm[ed] within it”—and that cost was ultimately
passed along to consumers of the produce—“food shoppers in far away metro-
politan areas [we]re to some extent likewise ‘affected’ by the activities of the
district.” Id. at 730–31. Nevertheless, “[c]onstitutional adjudication cannot
rest on any such ‘house that Jack built’ foundation.” Id. at 731. Notwithstand-
ing the incidental effects that municipal water users may experience, the fact
remains that the economic burden of the EAA’s operations does not fall on
Bexar County “residents qua residents.” Id. at 729.

      Lastly, LULAC advances that the EAA’s efforts to conserve aquifer
water and to protect endangered species benefit all residents, regardless of
whether the water is used for agricultural irrigation, recreational springs, or
human consumption. Citing Hellebust v. Brownback, 42 F.3d 1331, 1335 (10th
Cir. 1994), LULAC urges that where “a state agency has the authority to affect
every resident in matters arising in their daily lives, its powers are not dispro-
portionate to those who vote for its officials.” But Hellebust concerned the Kan-
sas State Board of Agriculture, which possessed statewide jurisdiction to en-
force approximately eighty laws governing the quality of meat and dairy
products, the use of pesticides, and the right to divert and pump water. Id.
at 1332–33, 1335. Conversely, the EAA does not exercise such omnibus and
far-flung powers affecting all persons at all times.

                                        D.
      Because the EAA therefore qualifies as a special-purpose district, we ask
only whether the apportionment scheme “bears a reasonable relationship to its
statutory objectives.” Ball, 451 U.S. at 371. Rational-basis review “is not a
license for courts to judge the wisdom, fairness, or logic of legislative choices.”
Heller v. Doe, 509 U.S. 312, 319 (1993) (citation omitted). Instead, “[a] statute

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                                        No. 18-50655
is presumed constitutional, and [t]he burden is on the one attacking the legisla-
tive arrangement to negative every conceivable basis which might support
it.” 16 Provided the law reasonably advances a legitimate state interest, we will
sustain the statute “even if [it] seems unwise or works to the disadvantage of
a particular group.” Romer v. Evans, 517 U.S. 620, 632 (1996).

       The EAA’s electoral scheme is rationally related to the legitimate goal of
protecting the aquifer because it equitably balances the rival interests of the
agricultural, spring-flow, and urban counties to ensure that no one region can
dominate the aquifer’s management. Legislative history confirms that the leg-
islature sought to achieve regional parity on the EAA board of directors. For
example, Representative Robert Puente stated that the board was “structured
to . . . even out the three different interests” of the competing regions. Debate
on Tex. S.B. 1477 on the Floor of the House, 73d Leg., R.S. 84 (May 24, 1993).
Senator Kenneth Armbrister likewise remarked that the legislature “w[as]
trying to provide a mechanism” that would prevent the board from being
“skewed one way or the other.” Hearing on Tex. S.B. 1477 Before the Senate
Comm. on Nat. Res., 73d Leg., R.S. 13 (May 6, 1993). That concern persisted
even when, in 1995, the legislature replaced the appointed nine-member board
with an elected fifteen-member board. 17

       Additionally, the apportionment scheme was likely necessary to ensure
the creation of the EAA. In their declarations before the district court, both
Puente and Armbrister reflected that the Act would not have passed if any one


       16 Heller, 509 U.S. at 320 (internal quotation marks and citations omitted); see also
Salyer, 410 U.S. at 730 (considering whether the district’s electoral scheme “was wholly irrel-
evant to achievement of the regulation’s objectives” (internal quotation marks and citation
omitted)).
       17See Debate on Tex. H.B. 3189 on the Floor of the House, 74th Leg., R.S. 55 (May 9,
1995) (“Senate Bill 1477 was passed out with an appointed authority with roughly one third
from each geographic region. The bill before you still stays [true] to that compromise . . . .”).
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                                   No. 18-50655
region controlled a majority of the directors or if the statute lacked the ap-
proval of all three regions. LULAC does not contest that political reality but
retorts that “legislators may not bargain away the constitutional voting rights
of citizens . . . in order to get legislation passed.” Citing Romer, 517 U.S. at 634,
and City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446–47 (1985),
LULAC contends that an apportionment scheme “predicated explicitly on
favoring or disfavoring one political[ly] unpopular group or geographic region
cannot survive even rational basis inquiry.”

      Nonetheless, courts have repeatedly found that a special-purpose district
passes constitutional muster where its electoral scheme was reasonably neces-
sary to the formation of the district. See, e.g., Ball, 451 U.S. at 371; Salyer,
410 U.S. at 731; Kessler, 158 F.3d at 108. LULAC’s reference to Romer and
Cleburne is inapposite. Unlike in those cases, there is no suggestion that the
EAA’s apportionment scheme rested on an “irrational prejudice” or “a bare . . .
desire to harm a politically unpopular group.” Cleburne, 473 U.S. at 447, 450
(citation omitted); see also Romer, 517 U.S. at 634. Consequently, the EAA’s
electoral system complies with the Equal Protection Clause of the Fourteenth
Amendment.

      AFFIRMED.




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                                  No. 18-50655
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
      Lacking the requisite indicia of general governmental powers, the
Aquifer Authority is plainly a single purpose entity, yet it is here urged that in
choosing to select its directors by election than by appointment, the Texas
Legislature stepped on the trip wire of one person one vote—an unnecessary
mechanical reflex that would here undo the underpinnings—and virtues—of
the single purpose doctrine.
      The Aquifer Authority is charged with protecting an extraordinary asset
of the state—one that can be depleted and lost to contamination and
misallocation. The Legislature did not choose to create an appointive board. It
rather chose to engage the three geographical areas with the greatest incentive
to protect this unique resource, each with its own perspectives. These
competing interests are defined by their proximity to the Aquifer—and distinct
in their draw upon it. Its balancing allocation of members to the three distinct
interests demands accommodation in the governance of the Aquifer Authority,
spinning self-interest to the common objective of asset protection. It bears
emphasis that this governance comes with no disenfranchisement of voters—
only a dilution of voter strength essential to the very structure of the special
purpose entity, a dilution essential to its core purpose. And to these eyes,
dilution looks past the binary liability metric of impact attending
disenfranchisement. The inquiry does not end with a finding of vote dilution.
Here, dilution in service of preserving a common resource results not in
disenfranchisement but in effective governance of the state’s single purpose
entity.




                                       25
