Groundwater Conservation Districts

Groundwater Conservation District Hearings at SOAH

What are Groundwater Conservation Districts?

Groundwater Conservation Districts, also known as GCDs or Districts, regulate groundwater production and transfer and issue permits for wells within an area. GCDs are legislatively created districts and have only those powers expressly granted to them by the Legislature. These districts are required to balance the interests of landowners in the management of groundwater and are generally empowered to require permits for water wells, prevent waste, develop management plans, and adopt rules to regulate the protection of groundwater in accordance with Chapter 36 of the Texas Water Code. There are nearly 100 GCDs throughout the State of Texas.

Role of the State Office of Administrative Hearings

The State Office of Administrative Hearings (SOAH) is an independent and neutral agency of the State of Texas that conducts administrative hearings and mediations. It is separate and independent from local Groundwater Conservation Districts and the other parties to groundwater disputes. This separation of legal authority is designed to ensure the hearings conducted by SOAH’s Administrative Law Judges (ALJs) are fair and impartial, considering evidence and testimony presented by all parties. SOAH’s Chief Administrative Law Judge, who is the chief executive officer of the agency appointed by the Governor, is required by law to protect and ensure the decisional independence of each judge and to consistently apply SOAH’s standards across all case referrals. 

When a water district permit application is contested, any party can request a hearing at SOAH to resolve the dispute. Most water district cases at SOAH concern disputes over proposed permits for water production or transportation associated with new construction or changes in water use. SOAH judges preside over some of the state's most significant water rights decisions, offering a fair and objective hearing process that is independent from public opinions or external influences, and instead focused on the application of legal principles to make reasoned determinations. 

The SOAH hearing on a contested GCD application must be held in one of the following locations: Travis County, a SOAH district office, the District’s regular meeting location, or a location provided by the GCD Board of Directors. During the SOAH hearing, the Applicant bears the burden of proof to demonstrate by a preponderance of the evidence that their application meets the requirements for issuance of a permit.

Although the Texas Water Code has allowed independent SOAH hearings for groundwater conservation district cases since 2005, this option is rarely used by districts or disputing parties.

Contract and Payment of Costs

If a hearing at SOAH is requested, the GCD must first enter into an interlocal contract with SOAH to cover the costs of a formal hearing. GCDs may not docket a case to SOAH for hearing or mediation until a contract is executed and all costs are deposited. 

By law, the party that requests the hearing is responsible for the payment of all associated costs and must deposit sufficient funds with the District to cover the contract amount before the SOAH hearing can begin. The amount of the initial deposit is based on SOAH’s estimate of the number of billable hours an ALJ will likely need to complete the case, multiplied by the hourly rates set by the Legislature. Hearings costs can vary widely depending on the number of parties, the complexity of the dispute, the need to resolve significant prehearing matters, and the expected number of days for the hearing on the merits.

Public Attendance

SOAH hearings on GCD applications are open to the public but do not provide the opportunity for public comment or public participation. Rather, the hearing is a formal legal proceeding pursuant to the Texas Administrative Procedure Act and certain other laws and rules of procedure. Those interested in attending a SOAH hearing on a GCD application should expect to encounter the same formalities of a court regarding decorum, procedure, the introduction of evidence, and witness testimony. 

Only the district, the applicant, and the parties to the case may file documents, participate on the record, and speak at the hearing. The ALJ presiding over a case is also expected to maintain proper order and decorum during the proceedings, adhering to all applicable rules of evidence and procedure. Any action by attendees that disrupts the proceedings, shows disrespect to the ALJ or case participants, or attempts to influence the outcome through intimidation or emotional display is prohibited.

Decision and Appeal

About 60-days after the conclusion of the proceeding, the presiding ALJ will issue a Proposal for Decision, also referred to as a PFD. This will include the ALJ’s findings of fact and conclusions of law applicable to the case. 

The SOAH ALJ’s decision in a GCD case is not the final decision but is subject to final adoption by the Board of the referring District. The Board is considered to have adopted a PFD as a final order on the 181st day after the PFD issuance if the Board has not issued a final decision. 

If any party is dissatisfied with the decision, they have the right to appeal the case to the appropriate court of the county in which the district or part of the district is located.

How It Works

  1. A preliminary hearing will be held by an ALJ to decide various preliminary matters necessary to set the course for the litigation, including scheduling and deadlines. An ALJ may hear evidence to determine whether those requesting to participate in the contested case have “standing” as an affected party. By statute, party status is limited to “a person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the administrative hearing […] An interest common to members of the general public does not qualify as a personal justiciable interest,” Texas Water Code Section 5.115. 

    Those granted party status will be expected to participate in the rest of the contested case process subject to the same rules of procedure, discovery, and evidence, and bear any associated costs. Party status may be denied on the basis that the person does not have a justiciable interest that meets applicable legal requirements. Parties who are similarly situated may be aligned or divided into groups by an ALJ for case management.
     
  2. After the parties have been established at the preliminary hearing, the case will proceed over the course of several weeks or months in the same manner as a civil lawsuit, with a discovery period, and the issuance of various interim orders relating to scheduling, discovery, continuances, etc. Parties may be required to submit written testimony, called prefiled testimony, before the hearing.
     
  3. Much like judicial proceedings, some cases are settled or dismissed before a full hearing on the merits is conducted. If the case is not dismissed or settled, a hearing on the merits will be set before one or more SOAH ALJs. The hearing on the merits is like a trial and is conducted according to similar rules, which are found in SOAH’s Procedural Rules.
     
  4. After the conclusion of any hearing on the merits, the parties may be required to submit post-hearing briefing before the evidentiary record is officially closed. Once the record is closed, then the ALJ has at least 60 days to prepare and issue a Proposal for Decision, or PFD. The SOAH ALJ does not make the final administrative determination in the case.
     
  5. After a PFD is issued, there is a short exceptions period where parties can file exceptions and ask the ALJ to revise or correct the proposed decision.
     
  6. Finally, once SOAH has concluded its involvement in the case, the Groundwater Conservation District (GCD) will make the final decision to either adopt the PFD or to change, vacate, or modify the ALJ’s decision. If a GCD fails to make a timely final decision on the matter after 180 days, then the PFD is considered to have been adopted as a final decision. 
     
  7. If a party wants to further contest the District’s final decision, they must first ensure that they have complied with any applicable rehearing requirements under section 36.4165 of the Water Code to ensure that the decision is final as a matter of law.
     
  8. After the District's decision becomes final as a matter of law, the parties may file a petition for judicial review in a court of competent jurisdiction provided by section 36.251 of the Texas Water Code.

 

Relevant Rules & Statutes

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