Mr. Hill’s direct line: (512) 322-5855

December 4, 2015

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.

ACCEPTED

14-15-00031-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

12/4/2015 11:50:08 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/4/2015 11:50:08 AM CHRISTOPHER A. PRINE Clerk
The Honorable Christopher A. Prine

December 4, 2015

Page 2 of 2

C/M.

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

cc via e-service:

Cynthia Woelk

Anthony C. Grigsby

Ryan D. Greene