Texas Supreme Court Victory for EAA, Kemp Smith attorneys
On June 26, 2009, the Texas Supreme Court issued its decision in Edwards Aquifer Authority v. Chemical Lime, Ltd., No. 06-0911, handing a major victory to the Edwards Aquifer Authority (Authority) in a case that had raised questions regarding the efficacy and validity of the Authority’s permitting process conducted from 1996 to 2006.
This case involves Chemical Lime, Ltd. (“Chemical Lime”), an applicant for a Initial Regular Permit (IRP) from the Authority that had submitted its application after the deadline for such applications had passed. Chemical Lime claimed that: (1) the Authority set the wrong deadline for IRP applications; (2) even if the Authority set the correct deadline, Chemical Lime substantially complied with filing requirements even though it filed its application after the deadline. Chemical Lime had prevailed at the trial court and at the Third Court of Appeals.
In an unanimous opinion, the Texas Supreme Court reverses the decision of the Court of Appeals and remands the case to the trial court for further proceedings consistent with its opinion.
In its opinion, the Texas Supreme Court holds that June 28, 1996 – the date of that the Court issued its decision in the Barshop case upholding the facial constitutionality of the EAA Act – is the effective date of the EAA Act. Further, the Court holds that the Authority correctly applied Barshop and that it correctly set the deadline for the filing of IRP applications at six months from the date of the Barshop opinion.
The Texas Supreme Court also holds that Chemical Lime did not substantially comply with the EAA Act’s permit application requirements. The Court reasons that by picking a specific date and making no provisions for extension, the Texas Legislature intended the filing deadline to be essential to the EAA Act. The Court also remarks that the need for a filing deadline with no exceptions is apparent in this situation.
On the question of attorneys fees, the Court: (1) remands the case to the trial court for it to reconsider its earlier award of attorneys fees to Chemical Lime under the Uniform Declaratory Judgment Act; and (2) holds that the Authority is entitled to an award of attorneys fees under § 36.066(g), Water Code.
