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Archive for March, 2012|Monthly archive page

A New Day for Texas Water Rights?

In Landowners, Texas Law, Water Law on March 21, 2012 at 10:50 AM

If last summer taught Texans anything, it was that water scarcity is no joke. With record droughts and temperatures affecting everything from agriculture to wakeboarding, water was on everyone’s minds.

With water on the brain in Texas, many waited to see what the state Supreme Court would do with groundwater rights in a long pending case, Edwards Aquifer Authority v. Day, decided on February 24, 2012.

At issue in Day was the validity of the Edwards Aquifer Authority’s (EAA) implementation of a permit system that prioritized water rights based on landowners’ historic usage patterns. The EAA was created by the Texas Legislature in 1993 as part of Texas’s broader groundwater regulation structure through localized Ground Water Districts (GWDs). Under Texas’s regulatory structure, GWDs have the ability to apportion the amount of water that landowners inside the district may pump in a given year. Although the GWDs face some restrictions, they generally have broad authority to regulate the consumption of groundwater in their districts.

While GWDs possess broad authority to craft their regulatory structures, most GWDs have allocated their permits on the consideration of how much groundwater a landowner had previously put to use on their land. The Texas Water Code (TWC) requires GWDs to consider historic use as a factor to be considered by the GWDs, but the TWC does not make that factor dispositive. Indeed, the TWC does not mandate that any historic usage pattern be preserved.

The EAA, by contrast, does not have the same flexibility that GWDs possess. Instead, the Texas legislature included a mandatory consideration in the EAA’s enabling act that “[t]o the extent water is available . . . [the EAA] shall issue the existing user a permit for withdrawal of an amount of water equal to the user’s maximum beneficial use of water . . . for any one calendar year [during June 1, 1972 to May 31, 1993].” Thus, the EAA is not free to choose from a broad array of considerations to structure its permitting system like GWDs are under Chapter 36 of the Texas Water Code. This rigidity is what prompted Day.

Day began when the EAA was first created. R. Burrell Day and Joel McDaniel purchased a tract of land inside the EAA’s authority. That tract of land had a well that tapped into the Edward’s Aquifer and had been used by the previous owners to irrigate the land. Problematic for Day and McDaniel was that the well primarily filled a lake on the property that was used mostly for recreation. Although some of the irrigation water was drawn directly from the well, most of the irrigation water was drawn from the lake. This fact caused the EAA to severely curtail the amount of historic use Day and McDaniel’s property qualified for because the only use that counted under the EAA’s regulatory scheme was water that came directly from the well and was put to a beneficial use; filling a lake to play in does not constitute a beneficial use.

More than ten years after the EAA issued the usage permit to Day and McDaniel, the Supreme Court addressed Day and McDaniel’s challenge. The case centered on the ability of the EAA, a state entity, to curtail access to the water below an owner’s land without any kind of compensation. The challenge implicated the Texas Constitution’s takings clause. Article I, section (17)(a) states “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation.”

Day required the court to first address a question it had artfully dodged for over a century: Can someone own water beneath their land if that water is not stationary beneath only their land and instead flows through an underground aquifer that covers anywhere from hundreds to thousands of square miles? The court answered this question in the affirmative by drawing on the court’s similar conclusion in its well settled case law relating to oil and gas rights. Although the court announced that landowners do have property interest in the water underneath their land, the court did not announce a definitive test to determine the amount of water a land owner possesses. Instead, the court merely provided that landowners have a property interest in the “fair share” of water beneath their land.

With that threshold question out of the way, the court then addressed Day and McDaniel’s takings claim. The taking claim at issue was specifically a regulatory taking because the state was not literally taking or occupying the property at issue, but instead limiting its use. To succeed on a regulatory taking claim, one most demonstrate that (1) that the regulation economically interferes with (2) a reasonable investment backed expectation the owner had in acquiring the property, and (3) that the regulation is not reasonable.

The court found that the factual record developed in the courts and agency proceedings below it did not provide enough information for it to determine whether Day and McDaniel could succeed on the first two factors. The key fact absent from the record was what amount of water, if any, Day and McDaniel expected to receive under the EAA’s historic use allocation. But the court did analyze the third factor. To determine whether the EAA’s permitting allocations were reasonable, the court focused on the differences between the EAA’s enabling act and the TWC. The court searched for a justification for the EAA’s specific legislative mandate to absolutely prioritize water allocation based on the historic usage of landowners in light of the TWC’s more flexible test that allows each GWD to form their own priorities in allocating water. Neither the EAA itself, nor the court could supply a viable justification for why the EAA could not follow a similar approach to GWDs that derive their authority from the TWC. Based on the lack of factual development and the court’s inability to say that EAA’s absolute prioritizing of historic use is reasonable, the court sent the case back down to the trial court to develop the facts necessary to decide whether Day and McDaniel had a compensable taking claim.

With the persistence of drought conditions throughout much of Texas, the pronouncement that water rights curtailment through permits issued by the EAA or other GWDs may constitute compensable taking claim has the potential to greatly shake the current structure of Texas water law. When the Texas legislature convenes next January, Day will likely force a hard look at the current structure of GWDs and special entities like EAA. In the intervening months, landowners whose permits are limited mostly by historic use considerations may have the potential to gain compensation through a takings claim theory. Day, then, appears to provide a catalyst for a reconfiguration of water regulation in Texas that will come on the heels of one of the hottest and driest summers in Texas history. Thus, for a case that did very little to advance the litigation of the parties before the court, Day likely constitutes a game-changing case, the impact of which will be felt for many years.

Obama Administration Seeks Common Sense Change in Immigration Law

In Federal Law, Immigration on March 2, 2012 at 9:18 AM

United States immigration laws currently allow immigrant spouses and children of U.S. Citizens and Legal Permanent Residents to apply for a green card (legal permanent residency) even if they initially entered the country without inspection. However, the law currently requires most of these folks to apply for their green card from their country of origin.

The Problem

The catch, however, is that in most cases leaving the United States, after entering without inspection, triggers a 10-year ban that Congress enacted back in 1996 — even for those individuals who are already fully eligible to become legal permanent residents.

The Solution

To remedy this catch-22 situation, Congress crafted a series of waivers for the laundry list of violations that may lead to a finding of inadmissibility under section 212(a)(9)(A) or (C) of the Immigration and Nationality Act (INA).

The most commonly utilized of these waivers is the I-601 Unlawful Presence Waiver. To qualify for this waiver, an applicant must have a U.S. Citizen or Legal Permanent Resident spouse, or parent, that will suffer “extreme hardship” if the applicant cannot return to the United States, or if they have to relocate outside the U.S. to be with the applicant.

“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the intended immigrant is denied admission. An example of extreme hardship is being unable to provide care for a disabled family member living in the United States.

It is important to prove BOTH why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the U.S. without the intended immigrant. It is not enough to merely assert that the qualifying relative will miss the immigrant’s company, as this is considered a “normal” hardship, not extreme hardship.

Oddly enough, and unfortunately,  the applicant’s children, of any age, are not considered qualifying relatives for the purpose of the I-601 Waiver. Thus, a waiver cannot be granted solely on the basis of your relationship to your U.S. Citizen or Legal Permanent Resident child. However, documenting that you have a U.S. Citizen or Legal Permanent Resident child will help you establish extreme hardship with respect to your spouse or parent; as any hardship that befalls your child will likely also impose a hardship upon your spouse. Also, applicants with more than one unlawful entry into the United States after April 1, 1997 may not be eligible for this waiver.

Currently, the intending immigrant must submit their waiver packet at the U.S. Embassy or Consulate abroad, where it can take several months and even years for United States Citizenship and Immigration Services  (USCIS) to make a decision on the waiver — and all of this happens while the family remains separated from each other.  Likewise, sometimes waivers are not approved at all, and immigrants end up becoming permanently separated from their American families. As a result, many couples who need this waiver choose to lay low in the United States, rather than go through the waiver process and risk facing the 10 year ban.

A Much Better Solution

However, USCIS is now proposing a small tweak in the waiver process for the spouses and children of U.S. Citizens (not Legal Permanent Residents) who are seeking waivers only for their own unlawful presence.  This proposed rule (which is currently only a “notice of intent” to publish a proposed rule) would provide eligible immigrants with “provisional waivers” in the United States, before leaving abroad to pick up a green card in their country of origin. Leaving with the waiver in hand will allow these immigrants to depart the U.S. knowing that they will almost certainly be allowed to return to the U.S. to be with their families.

It is important to remember that the provisional waiver rule WILL NOT allow applicants to receive their green cards in the U.S.; it is only the provisional waiver itself that they will receive in the U.S.  Applicants will still have to travel abroad for the issuance of the immigrant visa/green card by the U.S. consulate in their home country.  However, USCIS is seeking to cut down on the amount of time immigrants will have to wait abroad to pick up their green cards, from the current wait time of several months, to a much more manageable wait time of about two weeks.

The Politics of Immigration Law

It should come as no surprise that this recent move was greeted with broad praise from immigration attorneys, as well as immigrant and Latino groups, which have recently been critical of the high rate of deportations under President Obama. And, with the 2012 Presidential Election on the horizon, and President Obama needing to shore up lagging support among Latinos, the timing of the announcement from the White House was clearly political. So, as to be expected, a few anti-immigrant groups have cried foul because this particular tweak in the law is one of a number of recent measures by the Obama administration that do not require the approval of Congress.

However, the fact of the matter is that those who would criticize this measure have little ground to stand on because the proposed rule change does not change any laws, nor does it provide any new benefits for undocumented immigrants. What it does, however, is improve compliance with current law, as waivers were originally designed to ease the effects of contradictory or outmoded statutes on immigrant communities, and to prevent the hardship of family separation.

Also, it is important to note that not only has this proposed rule been in the planning stages for years, but it has also been recommended by multiple non-partisan governmental and non-governmental organizations. Accordingly, assertions that it is nothing more than election year politics by the President are unfounded.

How Many Waivers Were Approved Last Year?

In Fiscal Year 2011, USCIS received 23,262 I-601 Waiver applications, and approved 17,790 of them… roughly a 76 percent approval rate. According to USCIS, however, the approval rate in Ciudad Juarez, Mexico last year was even higher — closer to 90 percent.

 What Happens if My Wavier is Denied?

Individuals whose waivers are denied would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA) in immigration court. For example, convicted criminals, public safety threats, and those suspected of fraud, among others, will receive NTAs to appear in Immigration Court for removal proceedings.

Anyone else who is denied a I-601 Waiver will have the choice to either abandon the process (while still remaining in the United States) or appeal the denial — while staying in the United States for the two or three years it typically takes to adjudicate the appeal.

Of course, the I-601 Waiver does not guarantee admission into the United States. The U.S. Consulate can always, after the initial consular interview, discover new grounds of inadmissibility, which may or may not, have an applicable waiver that can cure the inadmissibility.

What’s the Bottom Line?

The bottom line is that those who abandon the waiver process, or who have their waiver appeals denied, if not priority cases for ICE, will be back to square one—undocumented and married to U.S. Citizens. But at least they will be with their families in the United States, rather than separated from them, or forced to move under duress.

Can I Apply For A Waiver Now?

Short Answer: No.

Long Answer: It’s important to note that the provisional waiver system is not yet in effect, and won’t be in effect until USCIS publishes a final rule in the Federal Register that specifies the effective date the new law will go into effect. Some reports indicate that it may take as long as up to a year before the rule goes into effect. Therefore, DO NOT send in an application requesting a provisional waiver at this time, as USCIS will not accept these applications until a final administrative rule implementing the new law goes into effect.

Also, you need to be aware that some unauthorized practitioners of immigration law, as well as some unscrupulous immigration attorneys, may wrongly claim that they can currently file a provisional I-601 Waiver on your behalf.

Be assured, they cannot.

So, it goes without saying, or it should go without saying, that if you already have an immigrant visa interview scheduled with the U.S. Department of State, you still need to attend that interview. The State Department may cancel your immigrant visa registration if you fail to appear for your scheduled interview.