The opinion of the court was delivered by: JOYCE HENS GREEN
Plaintiff, the State of Texas ("Texas" or "State"), commenced this action on March 9, 1994 against the United States pursuant to Section 5 of the Voting Rights Act of 1965, codified as amended at 42 U.S.C. § 1973c ("Section 5"). Texas properly requested that a three-judge Court be convened pursuant to 28 U.S.C. § 2284. This Court subsequently permitted the League of United Latin American Citizens ("LULAC") to intervene as a party defendant.
Presently pending is Texas' motion for summary judgment. The United States, LULAC and the EUWD filed pleadings in opposition, and the State filed a reply. Oral argument was heard on October 5, 1994. For the reasons expressed below, this motion is denied.
The Edwards Aquifer ("Aquifer") is a 175-mile long underground body of water that provides ground water to arid portions of south central Texas. Users of the Aquifer are divided into three basic groups: (1) farmers in Uvalde and Medina counties, which are located over the Aquifer on its western end, (2) municipal users in Bexar County, which is centrally located over the Aquifer, and (3) municipal, industrial, and agricultural users in eastern counties serviced by rivers fed from the Comal and San Marcos springs, which are located at the Aquifer's eastern edge and are fed by the Aquifer. These counties include Comal, Hays, Caldwell, Guadalupe, Frio, Atascosa and Wilson.
The counties most directly affected by the Aquifer have created four districts to regulate the water in the Aquifer. The EUWD was established by special legislation in 1959 as a state regulatory body to govern the five counties situated above the Aquifer: Bexar, Comal, Hays, Medina and Uvalde. Medina and Uvalde counties withdrew from the EUWD in 1989, and created the Medina County Underground Water Conservation District ("MCUWCD") and the Uvalde County Underground Water Conservation District ("UCUWCD"), respectively. In addition, the Evergreen Underground Water Control District ("Evergreen UWCD") was created by special legislation in 1965 and operates in Frio, Atascosa and Wilson counties.
After the withdrawal of Medina and Uvalde counties, the EUWD was governed by a twelve-member board, four of whom were elected from single-member districts in Bexar County,
two at-large from Bexar County, three at-large from Comal County, and three at-large from Hays County. Subsequently, the EUWD was the subject of a lawsuit brought by Hispanic and African-American voters
pursuant to Section 2 of the Voting Rights Act. On May 5, 1994, a consent decree was entered in Williams providing that the EUWD be governed by a twelve-member board elected from six single-member districts in Bexar County, three single-member districts in Comal County and three single-member districts in Hays County. This new election system was approved by the Attorney General of the United States on July 26, 1994 and is presently being implemented. The first election will be held on November 8, 1994, but several years will pass before the full new system will be in place.
Around 1989, environmental groups and interests dependent on the Comal and San Marcos springs began to complain that low water levels in the Aquifer decreased the water flow in the springs, thereby threatening or killing several endangered species. In May 1991, the Sierra Club and other environmental interests filed suit against the United States Secretary of the Interior and the United States Fish and Wildlife Service ("USFWS").
The gravamen of the complaint was that by failing to insure adequate water levels in the Aquifer and, therefore, the springs, the federal government had failed to protect certain endangered species. Subsequently, three state agencies intervened in this action and were aligned as defendants.
In February 1993, following a bench trial, Judge Lucius D. Bunton, III, found violations of the Endangered Species Act. Judge Bunton directed the USFWS to develop and disseminate information about the springflows necessary to sustain the endangered species in the Comal and San Marcos springs. In addition, the court directed one of the state agencies to prepare a comprehensive management plan for the Aquifer. Judge Bunton invited the Sierra Club to move for further relief after the 1993 session of the Texas legislature if no regulatory plan were in place.
Primarily in response to that Court's directives, the Texas legislature passed S.B. 1477 on June 11, 1993. The principal creation of the Act is the Edwards Aquifer Authority ("EAA"), which would govern the Aquifer in the counties of Atascosa, Bexar, Caldwell, Comal, Guadalupe, Hays, Medina and Uvalde. The EAA will regulate the use, reuse, and conservation of water within or withdrawn from the Aquifer, and it must develop comprehensive management and critical period management plans for the Aquifer. The nine-member board of directors that would govern the EAA--all of whom would be appointed
--will have the power to issue orders, including the assessment of administrative penalties, and may seek civil injunctions to enforce its powers.
The Act also repeals the statutory authority for the EUWD and abolishes the EUWD. All files and assets of the EUWD are transferred to the EAA, and the EAA is to be substituted as a party in any litigation in which the EUWD is presently involved.
Texas submitted S.B. 1477 to the United States Department of Justice ("DOJ") for administrative preclearance under Section 5. On November 19, 1993, DOJ issued two letters in response, one of which objected to S.B. 1477 "insofar as it replaces the previously elected governing body with an appointed board."
Because the State was uncertain whether DOJ objected to the abolition of the EUWD or the creation of the EAA, representatives of the State and DOJ met on December 20, 1993 to seek clarification. On December 30, Texas sent a letter to DOJ restating Texas' basic view that the creation of the EAA falls outside Section 5.
By order dated February 25, 1994, the Sierra Club court appointed a monitor and imposed federal court regulation over the Aquifer. This order is premised in large part on the State's failure to implement a satisfactory regulatory system and will remain in effect until the State implements an adequate plan.
Texas seeks summary judgment on either of its alternative theories. Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by [its] own affidavits, or by ...