LULAC & SAWS v. EAA: Just Another Groundwater Lawsuit Involving the 14th Amendment's Equal Protection Clause

Jesse J. Richardson of the West Virginia University College of Law and Lead Land Use Attorney for Land Use and Sustainable Development Law Clinic is one of the smartest WaterWonks I know. He's graced these pages before, usually with an item that is somewhat off the beaten track. Today's post is no exception; it involves a lawsuit that invokes the 14th Amendment and could possibly invoke the Voting Rights Act.

What follows is Jesse's email; all I did was spell out the acronyms and add links and the graphic.
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The United States District Court for the Western District of Texas handed down an opinion in an extremely important water case on June 18. LULAC (League of United Latin American Citizens; later joined by SAWS, the San Antonio Water System) filed suit against the Edwards Aquifer Authority (EAA) in 2012, claiming that the structure of the Authority’s board violated the Equal Protection Clause of the 14^th Amendment to the United States Constitution. The EAA was created by the Texas Legislature in 1993 to manage the Edwards Aquifer Authority, the largest source of drinking water in the San Antonio region.

The 17-member board of the Authority includes 15 voting members representing districts: 7 in Bexar County (which includes San Antonio), and 1 each for Comal County, a district representing parts of Comal and Guadalupe counties, Hays County, a district representing parts of Hays and Caldwell Counties, Medina County, and one representing parts of Medina and Atascosa counties, and 2 for Uvalde County. The districting and distribution of votes is not based on population but represents what the EAA called a compromise between urban and rural areas that rely on the same water source. If the votes were based on population, Bexar County would receive many more votes than at present.

The lawsuit alleged that the voting scheme violated the Equal Protection Clause since a vote in Bexar County counts less than a vote in the other counties. In other words, LULAC and SAWS argued that, to be fair and constitutional, the votes should be allocated proportional to the population of each county. Many of the more rural communities surrounding San Antonio supported the Authority in the case. Many viewed the case as a thinly veiled attempt by urban San Antonio to control the water that supplies both rural and urban communities.

This urban-rural conflict is increasingly apparent in water wars in the United States, with urban communities needed more and more water, and increasingly looking to rural areas to obtain that water. Rural areas generally argue that the water should stay with them for future needs.

The court found in favor of the EAA based on a rather technical point. Since the EAA qualifies as a “special purpose district” and fulfills only a narrow government function, the Authority is “not subject to the strict demands of the one person one vote principle.”

As in most water wars, this dispute likely has not ended. LULAC and SAWS may appeal the ruling. Neither party has signaled their intent in that regard. In addition, LULAC agreed earlier in the litigation to hold off on asserting a claim under Section 2 of the Voting Rights Act of 1965 that the Authority’s structure improperly dilutes minority votes in Bexar County. That part of the Act prohibits voting practices and procedures that discriminate based on race, color or membership in a language minority group.

I never thought that water law would include the Voting Rights Act of 1965 or arguments of one person one vote. However, this unique case lies at the intersection of these two important areas of law.
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Enjoy!

"There are lies, there are damn lies, and there are hydrologist reports." - Texas legislative hearing, 2 February 2016 (thanks to Robert Mace)

Comments

[Todd Votteler]

This is the second Edwards Aquifer Voting Rights Act issue. The first was 1993 when DOJ wouldn’t preclear the Edwards Aquifer Authority Act because the EAA board was to be appointed by the Governor, replacing the elected Edwards Underground Water District board. The Texas Legislature amended the EAA Act in 1995 to create an elected board.