Summary
The Fifteenth Court of Appeals affirmed the district court’s judgment reversing and remanding a TCEQ order granting the Guadalupe-Blanco River Authority a water-rights permit. The court held that TCEQ committed an error of law by interpreting Texas Water Code Section 11.147(e-3) to eliminate the need to assess the proposed diversions’ effects on fish and wildlife habitats. The court also concluded that the National Wildlife Federation demonstrated standing through an alleged particularized economic injury to one of its members’ seafood business.
Topics
Practice areas
Questions Presented
- Whether NWF had standing under Texas Government Code section 2001.171 to seek judicial review of TCEQ's permit order.
- Whether TCEQ erroneously interpreted Texas Water Code section 11.147(e-3) as eliminating the need for a site-specific assessment under section 11.152 whenever an environmental-flow standard had been adopted for the relevant basin.
- Whether TCEQ was required to assess the effects of the proposed off-channel reservoirs on fish and wildlife habitats.
- Whether TCEQ's acceptance of a 37-mile diversion reach without identifying specific diversion points was arbitrary and capricious.
- Whether TCEQ's statutory error prejudiced NWF's substantial rights under Texas Government Code section 2001.174.
Holdings
- NWF established standing because its member alleged and supported an economic injury sufficiently particularized from that experienced by the general public, arising from the expected effects of the permitted diversion on San Antonio Bay and the member's seafood business.
- The adoption of an environmental-flow standard relieves TCEQ of performing a section 11.152 assessment only for determining environmental-flow conditions necessary to maintain the conditions specified in section 11.147(e-3), including fish and aquatic wildlife habitats. It does not categorically eliminate the duty to conduct a site-specific assessment under section 11.152.
- TCEQ did not commit an error of law by declining to assess the effects of the off-channel reservoirs themselves because the reservoirs were not the site of the appropriation and there was no evidence that they were located upstream, adjoining, or downstream of that site.
- TCEQ's erroneous interpretation of section 11.147(e-3) prejudiced NWF's substantial rights because the record did not contain alternative findings establishing that a habitat assessment was unnecessary under the statute as properly interpreted.
Key quotations
“We conclude that, under the plain language of Section 11.147, subsection (e-3), the application of an adopted environmental flow standard relieves the TCEQ from its duty to perform an assessment under Section 11.152 but only “for the purpose of determining environmental flow conditions necessary to maintain” certain conditions, including “fish and aquatic wildlife habitats.”” (15)
“Thus, TCEQ’s error of law prejudiced NWF’s substantial rights.” (19)
Factual background
GBRA sought a permit to divert up to 75,000 acre-feet of water annually from a 37-mile segment of the Guadalupe River, store up to 125,000 acre-feet in off-channel reservoirs, and use the water in nearby basins. NWF participated as an affected party and alleged that reduced freshwater inflows into San Antonio Bay would injure the economic interests of a member whose seafood business depended on the bay's water conditions and seafood supply. TCEQ granted the permit without conducting an additional assessment of the proposed diversion's effects on fish and wildlife habitats and without requiring more specific diversion-location information.
Procedural history
GBRA applied to TCEQ for a permit to divert water from the Guadalupe River, store some of it in off-channel reservoirs, and transfer it to nearby basins. After a contested-case proceeding before SOAH, the administrative law judges recommended granting the permit but also recommended additional environmental assessment and location information. TCEQ granted the permit without adopting those recommendations. NWF sought judicial review, and the Travis County district court reversed and remanded the TCEQ order. TCEQ and GBRA appealed.
Remand instructions
On remand, TCEQ must determine whether site-specific assessments of the proposed diversion's effects on fish and wildlife habitats are required under the Water Code as interpreted by the court, make necessary findings of fact and conclusions of law, and, if an assessment is required, determine whether additional information about the proposed diversion locations is necessary to conduct it.