Nathan Vassar and Jake Steen practice in Lloyd Gosselink’s 20-lawyer Water Practice Group in Austin, Texas.

Next Steps in Multi-Billion-Dollar PFAS Proposed Settlements with Public Water Systems

(Certain Public Water Systems faced December 2023 deadlines to opt out of the proposed class-action settlements)

Credit: Environmental Protection Agency

At issue: Two major national companies recently reached proposed multi-billion-dollar settlements over PFAS contamination in source waters, impacting public water systems.

Background: Several major manufacturers and chemical companies—3M Company, DuPont de Nemours, Chemours, and Corteva—reached multi-billion-dollar agreements in June 2023 (pending judicial approval) to settle class-action lawsuits alleging water contamination in water supply sources from per- and polyfluoroalkyl substances (PFAS) produced by such companies. The class action lawsuits claim the companies contaminated public water supplies by manufacturing products, such as firefighting foam, containing toxic PFAS chemicals that reached drinking water sources. Scientific analysis to date links PFAS exposure at certain levels to various adverse health effects, including increased risk of cancer, decreased fertility, weaker immune systems, and higher likelihood of developmental challenges in offspring.

3M agreed to contribute $12.5 billion, and DuPont, Chemours, and Corteva agreed to collectively contribute $1.185 billion to the respective settlement funds. Public water systems that did not affirmatively opt out from the class-action settlements can submit claims in the months and years following the settlement and potentially receive financial assistance for testing, treating, and remediating PFAS contamination in systems’ water supplies. In exchange, members of the class-actions agreed to absolve the manufacturers from any past, present, or future damages claims. Those public water systems that opted out by the requisite deadlines of December 4 and 11, 2023, as discussed further below, retained the ability to file suit against such companies. 

Recent Developments: Public water systems serving more than 25 people recently faced deadlines to decide whether to opt out of the class-action settlements. The settlements break down into two phases. Phase one claims are reserved for public water systems that have already tested and confirmed water supplies contaminated with PFAS. These public water systems had to decide whether to opt out of the 3M settlement by December 4, 2023 and the DuPont settlement by December 11, 2023. Public water systems that have not yet tested for PFAS contamination could also have opted out of the class-action settlements by the December 2023 deadlines, but these systems can still submit claims under phase two at a later date. Importantly, moving forward, if a public water system decides to remain neutral and does not take the necessary steps to opt-out, it remains subject to the ultimate settlement class and, as a result, should consider whether it should submit a claim.

Growing Subdivisions and Groundwater Availability: Recent Developments from the Texas Legislature

(Texas Senate Bill 2440)

At Issue: Developers relying on groundwater as a water source for their subdivision development must now certify groundwater availability through the city or county platting process.

Background: The Texas Legislature passed several bills addressing the state’s water issues during this most recent legislative session. One such bill, Senate Bill 2440, amends platting procedures for developers if a proposed subdivision relies on groundwater as a water source. Previously, developers planning subdivisions did not have to submit any documentation certifying the area had sufficient groundwater to support the proposed development unless municipal or county authorities prompted the developer to do so. This legislation’s underlying policy is to provide assurance that homeowners and businesses acquiring tracts in a new development will have a reliable water supply. Now, when planning subdivisions relying on groundwater, SB 2440 requires developers to provide certified statements proving groundwater availability when submitting plat applications, carving out narrow exceptions for subdivisions with less than ten plats and developments drawing groundwater from the Gulf Coast or Carrizo-Wilcox aquifers. The statements proving availability must be prepared by a licensed engineer or geoscientist certifying adequate groundwater availability for the development. Cities and counties are required to begin this groundwater-availability certification process on January 1, 2024. The statute directs the Texas Commission on Environmental Quality (TCEQ) to implement the certification component by rulemaking. TCEQ’s efforts are underway to amend its current certification process located in Chapter 230 of the TCEQ’s rules.

Stakeholder Effort Shows a Different Way Forward

(Lost Pines Groundwater Conservation District’s new Stakeholder Committee could provide a model for other groundwater conservation districts throughout the state)

At Issue: The Lost Pines Groundwater Conservation District (Lost Pines GCD) recently created a Rulemaking Stakeholder Advisory Committee to discuss, consider, and make rule recommendations for the Lost Pines GCD Board of Directors.

Background: The Texas Legislature passed Senate Bill 1080 during the 2023 Regular Session, but Governor Greg Abbott ultimately vetoed the bill. SB 1080 would have directed Lost Pines GCD to establish a mitigation program to address the negative effects of groundwater production on local aquifers. This legislation arose due to concerns from interested parties about the impact of groundwater production on wells under the jurisdiction of Lost Pines GCD in Bastrop and Lee Counties. In response to these concerns and the need to prepare for future growth in the surrounding area, Lost Pines GCD established a Rulemaking Stakeholder Advisory Committee (Stakeholder Committee) comprised of parties representing various interests and affiliations throughout the district.

The purpose of the Stakeholder Committee is to provide the Lost Pines GCD Board of Directors with draft rules and recommendations as the district faces growing challenges in the years ahead. The Stakeholder Committee serves the district in an advisory role and has no rulemaking authority. However, the Stakeholder Committee provides a collaborative forum for interests throughout the district to voice concerns and participate in shaping the district’s future policies. Comprised of sixteen (16) members representing eight (8) interest groups, the Stakeholder Committee met several times in 2023 to discuss physical impacts from groundwater pumping, production curtailment rules, alternative water supply options, and the desired future conditions of aquifers within Lost Pines GCD.

Moderated by Collaborative Water Resolution and The Meadows Center for Water and the Environment, members of the Stakeholder Committee have commented on the educational value of these collaborative meetings. The setting provides interested parties an opportunity to listen, learn, and cooperate with one another to meet the goals of the parties and their respective affiliations. The Stakeholder Committee faced a key challenge early in its life when litigation filed by the Lower Colorado River Authority (LCRA) against the Lost Pines GCD confronted the Lost Pines GCD and the Stakeholder Committee with the question of whether to suspend the committee’s work. The Lost Pines GCD allowed the Stakeholder Committee to deliberate upon its future. After a frank discussion among the members, instead of suspending their work or excluding the LCRA from future meetings, the committee decided to move forward with the participation of all stakeholders during their deliberations. The example set by Lost Pines GCD may provide a useful model for other groundwater conservation districts throughout the state dealing with similar challenges regarding the effective management of water resources.