AIRW 2017-7, L.P.; 600 Westinghouse Investments, LLC; 800 Westinghouse Investments, LLC; Texas Commission on Environmental Quality; And Jonah Water Special Utility District v. City of Georgetown, Texas

Opinion

ACCEPTED 15-24-00132-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 7/21/2025 7:40 PM NO. 15-24-00132-CV CHRISTOPHER A. PRINE CLERK

IN THE COURT OF APPEALS FILED IN 15th COURT OF APPEALS FOR THE FIFTEENTH JUDICIAL DISTRICT AUSTIN, TEXAS AUSTIN, TEXAS 7/21/2025 7:40:00 PM CHRISTOPHER A. PRINE Clerk AIRW 2017-7, L.P., 600 WESTINGHOUSE INVESTMENTS, LLC; 800 WESTINGHOUSE INVESTMENTS, LLC; TEXAS COMMISSION ON ENVIRONMENTAL QUALITY; and JONAH WATER SPECIAL UTILITY DISTRICT, Appellants,

v.

CITY OF GEORGETOWN, TEXAS Appellee.

On Appeal from the 261st District Court of Travis County, Texas, Cause No. D-1-GN-23-001004

BRIEF OF APPELLEE CITY OF GEORGETOWN, TEXAS

William A. Faulk, III State Bar No. 24075674

Carlota Hopinks-Baul State Bar No. 24094039

Kelsey E. Parker State Bar No. 24143891

SPENCER FANE LLP 816 Congress Ave., Suite 1200 Austin, TX 78759 Telephone: (512) 840-4550 Facsimile: (512) 840-4551

ATTORNEYS FOR APPELLEE, CITY OF GEORGETOWN IDENTITY OF PARTIES AND COUNSEL

Counsel for Plaintiff / Appellee: Intervenor-Defendants / William A. Faulk, III Appellants: Texas Bar No. 24075674 AIRW 2017-7, L.P.; 600 Westinghouse CFaulk@spencerfane.com Investments, LLC; and 800 Carlota Hopinks-Baul Westinghouse Investments, LLC Texas Bar No. 24094039 CHBaul@spencerfane.com Counsel for Intervenor-Defend- Kelsey E. Parker ants / Appellants: State Bar No. 24143891 Andrew B. Davis kparker@spencerfane.com Texas Bar. No. 24082898 Spencer Fane, LLP andrew@lkcfirm.com 816 Congress Ave., Ste. 1200 William T. Thompson Austin, TX 78701 Texas Bar. No. 24088531 will@lkcfirm.com Intervenor-Defendant / Todd Disher Appellant: Texas Bar. No. 24081854 Jonah Water Special Utility District todd@lkcfirm.com LEHOTSKY KELLER COHN LLP Counsel for Intervenor-Defendant / 408 W. 11th Street, 5th Floor Appellant: Austin, TX 78701 John J. Carlton Texas Bar No. 03817600 Helen S. Gilbert john@carltonlawaustin.com Texas Bar No. 00786263 Kelli A. N. Carlton hgilbert@bartonbensonjones.com Texas Bar No. 15091175 Barton Benson Jones, PLLC kelli@carltonlawaustin.com 7000 N. MoPac Expwy, Suite 200 Erin R. Selvera Austin, TX 78731 Texas Bar No. 24043385 erin@carltonlawaustin.com Edmond McCarthy The Carlton Law Firm, P.L.L.C. Texas Bar No. 13367200 4301 Westbank Drive, Ste. B-130 Ed@ermlawfirm.com Austin, TX 78746 McCarthy & McCarthy, LLP 1122 Colorado St., Suite 2399 Austin, TX 78701

i Defendant-Appellant: Texas Commission on Environmental Quality

Counsel for Defendant-Appellant: Sara J. Ferris Assistant Attorney General Texas Bar No. 50511915 Sara.Ferris@oag.texas.gov Environmental Protection Division Office of the Attorney General P.O. Box 12548, MC-066 Austin, TX 78711-2548

ii TABLE OF CONTENTS

PAGE(S)

IDENTITY OF PARTIES AND COUNSEL ............................................................... I TABLE OF CONTENTS ............................................................................................ III GLOSSARY OF TECHNICAL TERMS ..................................................................... V INDEX OF AUTHORITIES ...................................................................................... VI STATEMENT OF THE CASE ............................................................................... VIII STATEMENT REGARDING ORAL ARGUMENT ................................................ IX ISSUES PRESENTED ................................................................................................ X STATEMENT OF FACTS ........................................................................................... 1 STANDARD OF REVIEW ........................................................................................... 4 ARGUMENT AND AUTHORITIES ........................................................................... 7 A. The Commission improperly applied the State’s regionalization policy. ........................................................................................................ 7 B. The Commission’s evidence for denial of service was not supported in the law. ............................................................................................... 12 C. AIRW and the Commission misconstrue Texas’s Regionalization Policy. ...................................................................................................... 21 D. The District Court properly applied the legal standards in reversing and remanding the Permit. ................................................... 22 E. The Commission’s misapplied its own rules in considering hypothetical loss in value. ...................................................................... 25 F. Whether the wastewater treatment service is within the City’s ETJ or another’s service area does not affect the Commission’s defective regionalization analysis. ........................................................................ 29 G. TCEQ erred in concluding the Permit is protective of water quality and the existing uses of the receiving waters. ...................................... 30 H. TCEQ adopted a permit that is noncompliant with its antidegradation policy and procedures. ................................................ 32 I. The AIRW Permit is in violation of applicable requirements regarding nuisance odors. ...................................................................... 35 J. The Permit does not protect human health or provide for sufficient operational requirements. ...................................................................... 38 K. The Permit Application was not substantially complete and accurate................................................................................................... 39 PRAYER ...................................................................................................................... 40 CERTIFICATE OF COMPLIANCE ........................................................................ 41

iii CERTIFICATE OF SERVICE ................................................................................. 42

iv GLOSSARY OF TECHNICAL TERMS

CCN Certificate of Convenience and Necessity DO Dissolved oxygen IPs Procedures to Implement the Texas Surface Water Quality Standards PUCT Public Utility Commission of Texas Tex. Admin. Code Texas Administrative Code TCEQ Texas Commission on Environmental Quality TPDES Texas Pollutant Discharge Elimination System Tex. Water Code Tex. Water Code WQS Texas Surface Water Quality Standards UDC Plaintiff’s Unified Development Code

v INDEX OF AUTHORITIES

PAGE(S)

Cases

Ammonite Oil & Gas Corp. v. R.R. Comm’n of Tex., 698 S.W.3d 198 (Tex. 2024) ....................................................................................... 6 Cent. Power & Light Co. v. City of San Juan, 962 S.W.2d 602 (Tex. App. 1998) ............................................................................. 24 City of Austin v. Whittington, 384 S.W.3d 766 (Tex. 2012) ......................................................................... 19, 24, 25 City of Denton v. Grim, 694 S.W.3d 210 (Tex. 2024) ......................................................................... 17, 18, 24 City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179 (Tex. 1994) ....................................................................................... 5 City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750 (Tex. 2003) ..................................................................................... 24 City of Waco v. Texas Comm’n on Envtl. Quality, 346 S.W.3d 781 (Tex. App.—Austin 2011) ................................................................ 6 Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Env’t Quality, 393 S.W.3d 417 (Tex. App.—Austin, 2012) ............................................................... 5 Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142 (Tex. App. 2017) ............................................................................... 6 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) ..................................................................................... 20 Morath v. Lampasas Indep. Sch. Dist., 686 S.W.3d 725 (Tex. 2024) ..................................................................................... 19 Mosley v. Texas Health & Hum. Servs. Comm’n, 593 S.W.3d 250 (Tex. 2019) ....................................................................................... 4 Pub. Util. Comm’n v. Gulf States Utils., 809 S.W.2d 201 (Tex. 1991) ....................................................................................... 5 Save Our Springs All., Inc. v. Texas Comm’n on Env’t Quality, No. 23-0282, 2025 WL 1085176 (Tex. Apr. 11, 2025) ................................... 6, 33, 34 Texas Architectural Aggregate, Inc. v. Texas Comm’n on Env’t Quality, No. 03-22-00169-CV, 2023 WL 8459511 (Tex. App. Dec. 7, 2023) ........................... 5 Texas Comm’n on Env’t Quality v. Friends of Dry Comal Creek, 669 S.W.3d 506 (Tex. App. 2023) ............................................................................... 6 Texas Comm’n on Env’t Quality v. Maverick Cnty., 642 S.W.3d 537 (Tex. 2022) ............................................................................... 15, 16 Texas Comm’n on Env’t Quality v. San Antonio Bay Estuarine Waterkeeper, No. 15-24-00036-CV, 2025 WL 1442924 (Tex. App. May 20, 2025) ..................... 5, 6

vi Statutes

Tex. Gov’t Code Ann. § 2001.171................................................................................. 10 Tex. Gov’t Code Ann. § 2001.174(2) .............................................................................. 6 Tex. Gov’t Code § 2001.174(2)(A)–(F) ........................................................................... 5 Tex. Gov’t Code § 2003.047(i-1) ................................................................................... 41 Tex. Gov’t Code § 2003.047(i-2) ................................................................................... 42 Tex. Gov’t Code §§ 2001.001–.903 ................................................................................. 4 Tex. Loc. Gov’t Code § 212.172 ........................................................................ 31, 32, 33 Tex. Water Code § 26.027(a)........................................................................................ 21 Tex. Water Code § 5.351 ................................................................................................ 5 Tex. Water Code § 13.244(c) ........................................................................................ 41 Tex. Water Code § 26.023 ............................................................................................ 45 Tex. Water Code § 26.027 ............................................................................................ 42 Tex. Water Code § 26.027(b).................................................................................. 54, 55 Tex. Water Code § 26.0282 .................................................................................. passim Tex. Water Code § 26.030(b)............................................................................ 49, 51, 52 Tex. Water Code § 26.081 ...................................................................................... 11, 38 Tex. Water Code § 26.003 and § 26.0282 ............................................................ passim

Regulations

16 Tex. Admin. Code § 24.225(c) ................................................................................. 41 30 Tex. Admin. Code Ch. 307 ...................................................................................... 42 30 Tex. Admin. Code Ch. 307 ...................................................................................... 44 30 Tex. Admin. Code § 39.418 ..................................................................................... 54 30 Tex. Admin. Code § 305.1 ....................................................................................... 21 30 Tex. Admin. Code § 307.4-5 .............................................................................. 43, 48 30 Tex. Admin. Code § 307.5(b)(2) .................................................................. 44, 46, 47 30 Tex. Admin. Code § 309.10(a) ........................................................................... 49, 50 30 Tex. Admin. Code § 309.13 ............................................................................... 49, 51

vii STATEMENT OF THE CASE

Nature of the This suit is an appeal of the trial court’s Case: reversal of a final Order of the Texas Commission on Environmental Quality (“Commission” or “TCEQ”). The Commission issued a Texas Pollutant Discharge Elimination System permit to construct and operate a new wastewater treatment plant in Williamson County, Texas.

Course of The Commission granted AIRW a TPDES Proceedings: permit to serve a new residential community development in the extraterritorial jurisdiction of the City of Georgetown (the “City”) via final order. The City sought judicial review of the TCEQ’s final order in Travis County District Court. After considering the briefing on all issues and holding a hearing, the District Court entered an order reversing and remanding to the Commission on regionalization. CR at 730- 731.1

Trial Court: Honorable Laurie Eiserloh, 261st Judicial District Court, Travis County

Trial Court The District Court reversed the TCEQ’s Order Disposition for two stated reasons and remanded for further proceedings consistent with the order.

1 The Administrative Record (AR) was admitted into evidence at the hearing on the merits as Joint

Exhibit 1. RR at 5. The AR consists of four components: Documents, Exhibits, Public Comments, and Transcripts.

viii STATEMENT REGARDING ORAL ARGUMENT

The Commission and AIRW have requested oral argument in this appeal.

While this case does involve a complex regulatory-permitting process, the parties

have provided more than an adequate explanation of that regulatory scheme and its

history. The ultimate issue concerning the Commission’s improper application of the

legislatively mandated regionalization requirements is clear, thus negating the need

for oral argument and use of the Court’s judicial resources.

ix ISSUES PRESENTED

1. Did the District Court appropriately reverse the final order of the Commission

based upon the court’s disagreement with the Commission’s regionalization

determination and related findings?

2. Was the final order of the Commission, granting the TPDES permit, supported

by substantial evidence and based upon applicable law and reasoned decision-

making?

x STATEMENT OF FACTS

This case is an appeal of the Travis County District Court decision to reverse

and remand the issuance of Texas Pollutant Discharge Elimination System

(“TPDES”) Permit No. WQ0015878001 (“Permit”) to AIRW 2017-7, L.P. (“AIRW”).

2 AR 073. If the District Court’s decision were overturned and the Permit’s issuance

were upheld, the Permit would grant AIRW the authority to discharge up to 200,000

gallons per day of treated domestic wastewater from a proposed wastewater

treatment facility into waters of the state within the extraterritorial jurisdiction

(“ETJ”) of the City of Georgetown (“City”). Id.

After a contested case hearing before the State Office of Administrative

Hearings (“SOAH”), the Texas Commission on Environmental Quality (“TCEQ”)

issued the Permit via a final order on November 28, 2022. 1 AR 66. The City timely

filed a Motion for Rehearing on December 23, 2022, which was overruled by operation

of law on January 22, 2023, exhausting all administrative remedies. 1 AR 67.

Subsequently, the City timely filed an appeal in state District Court on February 21,

2023. CR 5. On October 31, 2024, the District Court held a hearing on the merits

(RR 1), and on December 2, 2024, it reversed and remanded the case to the TCEQ for

further proceedings. CR 730-31 (City of Georgetown, Texas v. Tex. Comm’n on Envt’l

Qual., No. D-1-GN- 23-001004 (261st Dist., Travis County, Dec. 2, 2024) (Final

Judgment Reversing Order of the Texas Commission on Environmental Quality))

(“Final Judgement”). On December 9, 2024, AIRW filed a Notice of Appeal, followed

by TCEQ’s on December 20, 2024. 1 SUMMARY OF THE ARGUMENT

The decision of the District Court to reverse the TCEQ’s issuance of a

wastewater discharge permit to AIRW is firmly grounded in law, fact, and

longstanding policy. That judgment should be upheld. At every stage, AIRW’s

Application violated the core statutory prerequisites for wastewater permitting in

Texas. TCEQ’s issuance of the Permit was not only unsupported by substantial

evidence, it represents a flagrant disregard of the Legislature’s mandate to prioritize

regional solutions over ad hoc, developer-driven infrastructure.

Foremost, the Permit flies in the face of Texas’ statutory regionalization policy,

codified in Tex. Water Code § 26.003 and § 26.0282. AIRW sought approval for a

standalone package wastewater treatment plant despite the undisputed availability

of regional service from the City of Georgetown—a qualified, active, and capable

provider. The record reveals that AIRW made no genuine effort to pursue

regionalization, instead devising a façade of outreach through informal, non-binding

communications with city staff. TCEQ’s rubber-stamping of these efforts as sufficient

“coordination” makes a mockery of its own regulations and past precedent. The

District Court’s determination that the Permit did not comply with Texas’

regionalization policy was correctly deduced, as regionalization is not merely a box-

checking exercise; it is a statutory imperative. TCEQ’s willful disregard for this

obligation undermines statewide policy and invites the proliferation of disjointed, less

economically efficient facilities.

2 Notwithstanding regionalization, the Permit fails to protect water quality and

public health as required under the Texas Surface Water Quality Standards. AIRW’s

Application was bereft of accurate hydrological data, ignored site-specific conditions,

and failed to assess the actual uses and ecological value of the receiving stream.

Neither AIRW nor TCEQ performed the necessary due diligence to evaluate how the

discharge would affect water quality or aquatic life. Even TCEQ staff admitted that

no fieldwork was conducted, and that narrative criteria (that are no lesser legal

standards for their absence of numerical values)—such as aesthetic and wildlife

considerations—were overlooked. This abdication of regulatory oversight left

downstream residents and ecosystems exposed to unnecessary risk and stripped the

Permit of any claim to scientific legitimacy.

The Permit’s deficiencies are not merely technical—they pose direct risks to

human health. The proposed discharge route cuts through residential neighborhoods

and over mapped dry land. TCEQ approved this configuration without confirming

even the existence of the proposed waterbody at the point of discharge or mandating

meaningful safeguards to prevent nuisance conditions during inevitable operational

malfunctions or other service disruptions. The permit’s failure to require redundant

units and storage facilities as a backup for treatment failures or power outages,

combined with its reliance on generic permit language, reveals a facility ill-suited to

protect neighboring communities. The permitting process ignored the context-

specific health and safety implications of the discharge and instead relied on rote

assumptions and boilerplate conditions.

3 Additionally, the Application’s factual defects and TCEQ’s flawed review

independently justify denial. AIRW materially misidentified land ownership, omitted

the legally necessary co-permittee (Jonah Water Special Utility District), and

submitted flawed maps, incomplete notices, and contradictory information. Rather

than reject the Application or require correction, TCEQ approved it wholesale—an

act the Court has the right to deem arbitrary and capricious.

In sum, the District Court’s judgment is not only correct, but also essential to

uphold the statutory, scientific, and procedural integrity of environmental regulation

in Texas. This case is not about deference to agency expertise; it is about enforcing

legislative mandates, protecting the water of the state, and ensuring that regulatory

processes are not reduced to hollow formalities. The reversal of TCEQ’s Permit was

not merely justified—it was required. This Court should affirm.

STANDARD OF REVIEW

The Texas Administrative Procedure Act (“APA”) governs this appeal. Tex.

Gov’t Code §§ 2001.001–.903; Mosley v. Texas Health & Hum. Servs. Comm’n, 593

S.W.3d 250, 258 (Tex. 2019) (“[The APA applies] to all state agencies and the

processes for judicial review of their decisions.”). Accordingly, this Court, like the

District Court, must determine whether substantial rights “have been prejudiced

because the administrative findings, inferences, conclusions, or decisions” of the

Commission are “in violation of a constitutional or statutory provision;” “in excess of

the [TCEQ’s] statutory authority;” “made through unlawful procedure;” “affected by

other error of law;” “not reasonably supported by substantial evidence considering

4 the reliable and probative evidence in the record as a whole;” or “arbitrary or

capricious or characterized by abuse of discretion or clearly unwarranted exercise of

discretion.” Texas Architectural Aggregate, Inc. v. Texas Comm’n on Env’t Quality,

No. 03-22-00169-CV, 2023 WL 8459511, at *4 (Tex. App. Dec. 7, 2023) (citing Tex.

Gov’t Code § 2001.174(2)(A)–(F)); See Tex. Water Code § 5.351.

A court may reverse an agency decision “as arbitrary and capricious,

independent of whether there is substantial evidence in the record, if its decision

constitutes a clear abuse of discretion.” Texas Comm’n on Env’t Quality v. San

Antonio Bay Estuarine Waterkeeper, No. 15-24-00036-CV, 2025 WL 1442924, at *10

(Tex. App. May 20, 2025). An agency’s action is arbitrary or an abuse of discretion if

it fails to consider a mandatory factor, considers an irrelevant factor, considers

appropriate factors but reaches a completely unreasonable result, or fails to follow its

own regulations. Tex. Gov’t Code Ann. § 2001.174(2); City of El Paso v. Pub. Util.

Comm’n of Tex., 883 S.W.2d 179, 184 (Tex. 1994); Pub. Util. Comm’n v. Gulf States

Utils., 809 S.W.2d 201, 207 (Tex. 1991); Heritage on the San Gabriel Homeowners

Ass’n v. Tex. Comm’n on Env’t Quality, 393 S.W.3d 417, 423 (Tex. App.—Austin,

2012).

In addition to the arbitrary and capricious review standard outlined above, the

Texas courts must also make two inquiries under the substantial evidence standard

of review:

(1) whether the agency made findings of underlying facts that logically support the ultimate facts and legal conclusions establishing the legal authority for the agency’s decision or action and, in turn,

5 (2) whether the findings of underlying fact are reasonably supported by the evidence.

Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App. 2017).

While an agency is given deference in its field of expertise, the test under the

substantial evidence review remains a test of reasonableness. Save Our Springs All.,

Inc. v. Texas Comm’n on Env’t Quality, No. 23-0282, 2025 WL 1085176, at *7 (Tex.

Apr. 11, 2025) (quoting Ammonite Oil & Gas Corp. v. R.R. Comm’n of Tex., 698 S.W.3d

198, 207 (Tex. 2024)). Simply put, a substantial evidence review considers whether

the record demonstrates a reasonable basis for the agency’s action. Id. Unless proven

otherwise, an agency’s findings, inferences, conclusions, and decisions are presumed

to be sufficient. Save Our Springs at *7. If an administrative decision is supported

by substantial evidence, it is generally not arbitrary and capricious; however,

“instances may arise where the agency’s action is supported by substantial evidence

but is nonetheless arbitrary and capricious.” Texas Comm’n on Env’t Quality v.

Friends of Dry Comal Creek, 669 S.W.3d 506, 517 (Tex. App. 2023), review denied

(Sept. 29, 2023). For example, an appellate court must remand an agency’s decision

for arbitrariness if it finds that the agency “has not actually taken a hard look at the

salient problems and has not genuinely engaged in reasoned decision-making.” Id.

(citing to City of Waco v. Texas Comm’n on Envtl. Quality, 346 S.W.3d 781, 819–20

(Tex. App.—Austin 2011), rev’d on other grounds, 413 S.W.3d 409 (Tex. 2013)).

When a TCEQ’s decision to grant a wastewater discharge permit is reviewed

for substantial evidence, it is subject to a de novo review. Tex. Gov’t Code Ann. §

2001.171; San Antonio Bay Estuarine Waterkeeper at *12 (Tex. App. May 20, 2025).

6 ARGUMENT AND AUTHORITIES

A. The Commission improperly applied the State’s regionalization policy. The District Court ruling should be upheld because the Permit contravenes

TCEQ’s statutory mandate to “encourage and promote” the regionalization of

wastewater infrastructure. Tex. Water Code § 26.081. Because the Commission did

not prepare a permit in compliance with Texas’s regionalization policy, it failed to

follow its statutory requirements, and as a result, acted arbitrarily.

Regionalization is the consolidation of multiple wastewater collection and

treatment systems into regional facilities to serve large populations over a broad

geographic coverage area. 2 AR 98. Practically, it is the process of connecting new

developments to existing wastewater collection systems rather than constructing a

new wastewater treatment plant (WWTP) to protect the health, safety, and welfare

of the people of the state. Id. The state implements this policy to operate wastewater

systems on an economy of scale and to reduce the infrastructure footprint by avoiding

the construction of multiple, unnecessary facilities.

In issuing wastewater discharge permits, the Commission is tasked with

(1) only issuing permits that are consistent with the State’s regionalization policy and

(2) conducting a technical review based on water-quality assessments. The former

requirement is governed by Tex. Water Code § 26.081, where the Legislature requires

TCEQ to implement a policy to “encourage and promote the development and use of

regional and areawide waste collection, treatment, and disposal systems to serve the

waste disposal needs of the citizens of the state and to prevent pollution and maintain

7 and enhance the quality of the water in the state,” also known as the “Texas

Regionalization Policy.” See 2 AR 146.

It is undisputed that the regionalization analysis is built into the Commission’s

review process of each permitted discharge. TCEQ Br. at 24. Specifically, it is

incorporated into the Commissions consideration of (1) need (of a new or expanded

permit) and (2) availability (of existing systems to connect to). Tex. Water Code §

26.0282, see TCEQ Br. at 24–25. This statutory regionalization policy grants TCEQ

the authority to

deny or alter the terms and conditions of the proposed permit, amendment, or renewal based on consideration of need, including the expected volume and quality of the influent and the availability of existing or proposed areawide or regional waste collection, treatment, and disposal systems not designated as such by commission order pursuant to provisions of this subchapter.

Tex. Water Code § 26.0282 (emphasis added).

The Commission also relies on its informal guidance on its website to apply its

statutory requirements under the Water Code. 2 AR 98. For example, to implement

the above “availability inquiry,” TCEQ requires that owners and operators of

proposed new WWTPs evaluate options for regionalization and document such efforts

before applying for a discharge permit for a new WWTP. Id. 2 AR 98 at AIRW000383.

This includes identifying all permitted domestic WWTPs or sanitary sewer collection

systems within a three-mile radius of a newly proposed facility, if any. Id. This

process is outlined in the permit application instructions and TCEQ guidance

document entitled “Evaluating Regionalization for Proposed Wastewater Systems.”

2 AR 146. If one exists within the three-mile radius, TCEQ requires that owners and

8 operators of proposed new WWTPs request service from the existing system and

document the ensuing discussions. Id. The request for service must include the

volume of the proposed facility’s discharges, an inquiry into the total cost to connect

to the existing sewer system and providing sewer services, as well as any additional

conditions for receiving service. Id.

As reflected in the administrative record, there are three WWTP within the

three-mile radius of AIRW’s proposed package plant:

 The City’s Dove Springs Wastewater Treatment Plant has a permitted

capacity of 2.5 million gallons per day. 2 AR 152 at GT PFT 0000325; 2 AR

134 at 17:12.

 The City also has an existing wastewater collection system within a three-

mile radius (in the Kasper/Fairhaven Subdivision, which is just northwest

of the proposed package plant). 2 AR 134 at 17:15–20.

 An additional wastewater collection system is under construction in the

Patterson Ranch Subdivision, which is adjacent to the north of the proposed

package plant and will be operated by the City. 2 AR 131 at 15:11–12,

21:15–18, 22:1–23:2; 2 AR 139; 2 AR 115.

Given the proximity to the abovementioned existing facilities, AIRW should

have provided certified copies of the correspondence it sent to the City, plus any

responses regarding the City’s available capacity or willingness to expand to accept

the volume of wastewater proposed in the Application. AIRW did not do so. 2 AR 74

at bates p. 00077. Because TCEQ failed to enforce the most basic procedural

9 requirements of the availability inquiry, its approval of AIRW’s Permit is inconsistent

with the very few regionalization policy procedures in place. Thus, the Commission

reached a decision made through unlawful procedure.

TCEQ also contends that the “Application and evidence developed during the

contested-case process” met the necessary burden to prove that a permit in this

instance was consistent with the Texas regionalization policy. TCEQ Br. at 24. Yet

TCEQ only specifically points to the “costs related to annexation-related diminution

in property value,” which weighed in favor of granting the Permit. TCEQ Br. at 26.

This so called “cost” was understood by the Commission as a denial of service. Id.

While it is correct that the Commission has the discretion to consider denial of

service, costs, and other relevant factors when following the regionalization policy, it

does not have the authority to determine property value reduction as effectively

denying service. TCEQ Br. at 26; See Tex. Water Code § 26.0282. TCEQ’s

consideration of “the approximately $20 million cost due to diminution in property

value” as constituting a “cost of connecting” to the City’s WWTF that weighs in favor

of granting AIRW’s Application is the quintessence of arbitrariness and

capriciousness.

Not only is the alleged diminution in value entirely speculative (as it may

accrue, if at all, in the future when the property is sold), it is not a “cost” to Appellant

AIRW; rather, the alleged future diminution in value would affect a party that is an

affiliate of AIRW, not AIRW itself. Thereby, TCEQ:

10  improperly considered irrelevant facts (the property value interests of third

parties);

 failed to consider relevant facts (i.e., the availability of existing regional

wastewater facilities, Tex. Water Code § 26.0282; the $300,000 higher cost

of building the proposed WWTF. 1 AR 66 at 7.

 improperly considered non-statutory criteria (a third party-real estate

developer’s financial interests);

 failed to consider relevant factors (i.e., the encouragement and promotion

of the use of regional waste collection, treatment and disposal systems to

serve the waste disposal needs of the citizens of the state, Tex, Water Code

§ 26.003; the consideration of need, including the expected volume and

quantity of the wastewater (all of which the City’s WWTF has capacity to

treat), id. § 26.0282; and

 a violation of statutory provisions (i.e., the requirement to “use [] all

reasonable methods to implement this policy,” id. § 26.003).

TCEQ’s consideration of the alleged diminution in value also constitutes an

abuse of discretion inasmuch as TCEQ has interpreted its various permitting

authorities to not allow the agency to consider “effects on property values” when

reviewing comments on proposed permits submitted by persons who claim to suffer

from diminished property values due to the permitted activity, yet it deigns to do so

for developers—despite their claimed interests and harms being exactly the same as

the persons objecting to the Permits’ issuance. See Concerns Outside of TCEQ’s

11 Authority, available at: https://www.tceq.texas.gov/agency/decisions/participation/

permitting-participation/concerns-outside-of-tceqs-authority. To the extent that

TCEQ’s TPDES permitting authorities do not allow it to consider diminution in

property values, its having done so for the benefit of affiliates of Appellant AIRW also

represents an exceedance of the agency’s authority, warranting reversal. In addition,

TCEQ’s consideration of the alleged, future diminution in a third party’s property

value as justification for issuance of a permit misinterprets and is at odds with the

statutory provisions regarding the state’s regionalization by favoring the grant of

permits which result in balkanization—instead of denying permits based on (lack of)

need and encouraging regionalization. Id. § 26.0282.

Ultimately, denial of service and costs are two different considerations. Cost

does not amount to denial because it’s high; rather, a high cost becomes a more

significant factor to consider in the overall evaluation. Thus, it was unreasonable for

the Commission to conclude that it was following the regionalization policy, when it

considered a factor that it considers irrelevant for other parties in its review process.

B. The Commission’s evidence for denial of service was not supported in the law. Tex. Water Code § 26.003 directs the TCEQ to use “all reasonable methods to

implement the [Regionalization] policy.” (emphasis added). These reasonable

methods include the discretion to deny a proposed wastewater treatment permit

based on the availability of existing or proposed areawide or regional waste collection.

Tex. Water Code § 26.0282 (emphasis added). This is because the goal of

12 regionalization is reducing unnecessary development, and conservation of resources,

especially when wastewater treatment capacity is available nearby.

In its discretion, the Commission has determined that there are four instances

when it may approve a discharge permit application:

(1) There is no wastewater treatment facility or collection system within three

miles of the proposed facility.

(2) The applicant requested service from wastewater treatment facilities

within the 3 miles, and the request was denied.

(3) The applicant can successfully demonstrate that an exception to

regionalization should be granted based on costs, affordable rates, and/or

other relevant factors.

(4) The applicant has obtained a Certificate of Convenience and Necessity

(CCN) for the service area of the proposed new facility or the proposed

expansion of the existing facility.

2 AR 98 at AIRW000383.

It is undisputed that neither one nor four apply to this proceeding because the

City has a wastewater treatment facility and collection system within three miles of

the proposed package plant, (see 2 AR 87 at 9:30–10:1; 2 AR 134 at 17:4–8, 23:17–

24:9, 25:4–17), and AIRW does not have a CCN for the service area proposed in the

Application. 1 AR 66 at 7. It is undisputed that the City has sufficient capacity at

Dove Springs WWTP to accept the volume of wastewater proposed in the Permit

Application. AIRW’s expert witness, Mr. Perkins, testified that, based on the record

13 “it appears [that the City] does have sufficient capacity at its Dove Springs WWTP to

serve the proposed development.” 2 AR 87 at 9:30–10:1; 2 AR 134 at 17:4–8, 23:17–

24:9, 25:4–17.

It is also undisputed that the Commission has the discretionary authority to

approve or deny a permit based on regional availability. AIRW Br. at 12, 17; Tex.

Water Code § 26.0282. However, AIRW believes that, in the context of the Tex. Water

Code, an “available” system is one that is “reasonably accessible to the applicant in

the real world.” AIRW Br. at 17-18. Apparently, the “real world” for AIRW is one

where approvals are unconditional or waivers and variances from generally

applicable requirements are offered by City staff (who have no authority to grant the

same) without applicants having to apply for them. Id. As a result, the system is

unavailable to AIRW if it requires any additional step to connect with their system.

AIRW contends that the City’s system is unavailable because under

Section 13.05 of the City’s Unified Development Code, the City requires annexation

to obtain wastewater services. 2 AR 165 342-343. On the contrary, there is sufficient

capacity available at Dove Springs WWTP to take on AIRW’s development. 2 AR 87

at 9:30–10:1; 2 AR 134 at 17:4–8, 23:13–24:9, 25:4–17; see generally 2 AR 152; 2 AR

150. The City merely requires an additional procedural step in the process of

connecting to the City’s system—a step that may be waived by the City Council upon

request. 2 AR 165 at 74-75. What is more, the cost to connect to the existing system

is less than the cost to construct the proposed package plant. 2 AR 91; 2 AR 92. TCEQ

14 even notes that regionalization typically costs less than constructing, operating, and

maintaining a new stand-alone system. 2 AR 99 at AIRW000392-393.

Therefore, the substantial evidence in the administrative record indicates that

there is available capacity at an existing WWTP, and it is unreasonable for the AIRW

to argue otherwise.

1. The Georgetown City Council did not deny the service request of AIRW. The District Court correctly held that the City Council did not deny the request

to connect to its existing wastewater treatment facility. Final Judgment. The

District Court also correctly notes that it was “unreasonable to assume” the limited

conversations between AIRW and the City’s staff members prove that the City

Council had “spoken” on the matter. Id.

The Legislature vests TCEQ with broad discretion in determining whether to

issue a discharge permit, regarding who must apply for such a permit and what a

permit application looks like. Tex. Water Code § 26.027(a); 30 Tex. Admin. Code §

305.1 et seq.; Texas Comm’n on Env’t Quality v. Maverick Cnty., 642 S.W.3d 537 (Tex.

2022). As a result of this authority, the Commission has decided that it may approve

a discharge permit application when an “applicant requested service from wastewater

treatment facilities within the 3 miles, and the request was denied.” 2 AR 98.

The record indicates that in 2019 600 Westinghouse Investments, LLC and

800 Westinghouse Investments, LLC (collectively, the “Developers”) emailed the City

Manager’s office inquiring into whether they could connect the new development to

the City’s wastewater treatment system. 2.AR.100 at 1. A City staff member replied

15 with a recitation of the City’s policy that “annexation is required” under the City’s

ordinances. Id.; See Georgetown Unified Dev. Code § 13.05. AIRW took the statement

of policy and the required condition as a rejection to connect to the system. Because

AIRW mistook this as a denial of service, it began considering how to build their own

wastewater treatment plant for the development. AIRW Br. at 5; 2 AR 107. On the

other hand, the TCEQ’s position was that this conversation translated to an “effective

denial of service.” TCEQ Br. at 27, 29-30. Both interpretations are incorrect.

The conversation continued when the Developers approached the City a second

time, where they inquired about opportunities to connect to the wastewater system

without annexation or under a delayed annexation approach. AIRW Br. at 5–6.

AIRW suggested that it could build a 5-acre park in place of the wastewater

treatment facility, if the annexation could be delayed or waived. 2 AR 107 at 3.

Despite this suggestion, the City’s planning director again explained that annexation

is required under the City’s ordinances. 2 AR 107 at 3. The Developers again took

this reiteration of policy as a denial of service. However, during early conversations

between potential negotiating parties, attaching a prerequisite to the agreement

more closely resembles a qualified approval, than an outright rejection. This is

especially true considering that in this instance there are no other barriers to service:

there is capacity available within the City’s wastewater system and the development

is within the City’s ETJ.

Again, the Developers’ position was that the above response was an outright

denial of service, which closed the door entirely to the proposed request. AIRW Br.

16 at 6. However, the door was not entirely closed because the Developers attempted to

revisit the conversation again a few months later. Id. The City was of the

understanding that the discussion of connection, with the potential of delayed or

waived annexation was still on going. Ms. Sofia Nelson, the City’s Planning Director,

even concluded her email conversation with the Developer by stating, “Please let me

know if you would like to discuss further,” (2 AR 74 at 00077) which invited further

dialogue between the parties and not a denial of wastewater service.

The repeated attempts by the Developers to gain access to wastewater

treatment services shows that negotiations were ongoing, and that none of the

previous conversations amounted to a denial of service. If anything, attaching a

prerequisite shows that City was willing and able to allow the connection, just not

unconditionally. See generally 2 AR 150.

While none of the individual conversations between the Developer and the City

equate to an outright denial of service, the accumulation of the conversations cannot

even amount to an outright denial because the City Manager and other staff members

do not have the authority to speak on behalf of the City. See City of Denton v. Grim,

694 S.W.3d 210, 215 (Tex. 2024). All conversations between the Developer and the

City were between parties unable to unilaterally bind the City. 2 AR 142; 2 AR 102;

2 AR 101.

For example, the City’s Planning Director, Ms. Sofia Nelson, has the power to

review but not approve an annexation/disannexation request or a development

agreement. 2 AR 9–11. She does not have any “Final Action Authority.” Id. On the

17 other hand, the City Manager’s Office, which runs the daily operations of the City

and plays an advisory role for the City Council, is not even listed as an office that has

a review, repeal, or “Final Action Authority.” Id. Therefore, Assistant City Manager

Wayne Reed serves as an advisor to the City Council, and carries out the decisions of

the City Council, but does not make decisions for the City Council. Id. (showing that

the Manager’s Office does not have “Final Action Authority” under the UDC.).

To reach the determination that the City denied service, TCEQ only relied

upon the email correspondence between City staff and AIRW that does no more than

inform AIRW of a generally applicable annexation requirement. It is unreasonable

for both AIRW and TCEQ to take the recitation of policy as a denial of service or

waiver. Moreover, nothing in the administrative record indicates that AIRW ever

attempted to seek a waiver from the City Council but instead took the statement of

policy as a de facto rejection. Without so much as an attempt to formally introduce a

Development Agreement to the City Council, it is impossible to know whether the

City Council would or would not be willing to waive the annexation requirement.

Final Judgment. Consequently, TCEQ’s conclusion is unsupported by the evidence

in the record and, therefore, arbitrary.

Under the UDC, the City Council is the official voice of the City in legislative

and policy matters, including annexations and waivers. 2 AR 165 at 81–82. (“The

annexation or disannexation shall become effective when approved by the City

Council and in accordance with the City Charter.”); 2 AR 165 at 75 (“The City Council

shall hold a Public Hearing, [] and may take final action on the proposed Development

18 Agreement or amendment”); see also 2 AR 9–11. As a result, only the City Council

can bind the City in an annexation or waiver, not its staff members, City Manager,

or a single council member. Final Judgment. City of Austin v. Whittington, 384

S.W.3d 766, 785 (Tex. 2012) (“. . . the words of one city council member or city

employee do not ordinarily bind the entire city council.”). Thus, the City had not

officially spoken on whether it was willing to delay or waive the annexation

requirement; rather other City’ offices had reported out the City’s ordinance on the

matter. Thus, it was correct for the District Court to hold that there was no way of

knowing whether the City Council would delay or waive the requirement without

going through the political process.

The TCEQ also argues that even if there was not a formal denial from the City

Council, it is not even required. TCEQ Br. at 31–33. This argument is misplaced.

The Commission is claiming that a “refusal does not require formalities,” despite

AIRW not asking those formally tasked with making the decision (i.e., the City

Council). TCEQ Br. at 31 (citing Morath v. Lampasas Indep. Sch. Dist., 686 S.W.3d

725, 735 & n. 30 (Tex. 2024)).

Moreover, the Commission misapplies Texas Supreme Court precedent from

The Commons of Lake Houston, Ltd. v. City of Houston. TCEQ Br. at 31. TCEQ

contends that the City has lost sight of the fact that the approval under judicial

review is the Commission’s. TCEQ Br. at 32. The City does not dispute that the

Commission’s decision is the one under review. The City’s position is that the City

Council had yet to make a final decision in the waiver of annexation (due to AIRW’s

19 failure to seek this administrative remedy), which makes it unreasonable for the

Commission to decide that service was denied—not that the issue is unripe for

judicial review.

The Commons of Lake Houston, Ltd. v. City of Houston addresses a regulatory takings

claim, where the Texas Supreme Court, in part, is discussing finality as it relates to

ripeness for judicial review. The Commons of Lake Houston, Ltd. v. City of Houston,

No. 23-0474 at *23. The Texas Supreme Court held that “for a regulatory takings

claim to be ripe there must be a final [and authoritative determination] regarding the

application of the regulations to the property at issue.” The Commons of Lake

Houston, Ltd. v. City of Houston, No. 23-0474 at *23 (quoting Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)) (emphasis added). Otherwise, the court

cannot reach its decision on whether the regulation went too far. Id. at 24 (quoting

Mayhew, at 929).

The Texas Supreme Court held that the claim was ripe because, when

obtaining a final determination, the property owner needs only to submit one

application, and if denied, seek a variance. Id. In that case, the Commons had made

a series of attempts to obtain a floodplain-development permit from the City. Id. at

25. Unlike the Commons, the Developers in the instant case made no attempt to

formally apply for a Development Agreement or otherwise request an annexation

waiver, and therefore, was not any closer to obtaining a final determination. AIRW

Br. at 32. As noted by the Supreme Court, the “finality” bar is quite low, but not low

enough to consider the Developers’ conversations via email enough to constitute

20 finality to make the Commissioner’s decision a reasonable one. The Commons of Lake

Houston, Ltd. v. City of Houston, No. 23-0474 at *23 (“The ‘finality requirement is

relatively modest.’”). Consequently, TCEQ’s and AIRW’s application of The Commons

of Lake Houston, Ltd. misses the mark, and the TCEQ reached an unreasonable

result.

C. AIRW and the Commission misconstrue Texas’s Regionalization Policy. AIRW fundamentally misunderstands the regionalization policy. Contrary to

AIRW’s position, the regionalization policy was not drafted by the legislature to

ensure serious consideration of nearby systems by applicants for wastewater permits.

AIRW Br. at 16. Rather, the policy is a guidepost for the Commission to efficiently

utilize existing wastewater infrastructure. 2 AR 99 at AIRW000392–393. Per the

TCEQ policy statement, the goal of “regionalization is to provide timely and cost-

effective solutions for achieving quality service.” 2 AR 99 at AIRW000392–393. The

policy also helps to conserve economic resources because regional systems can

distribute costs over a larger customer base. Id.; 2 AR 99 at AIRW000390–391.

Generally, this will result in lower treatment and disposal costs because “costs

associated with compliance are higher per person as the system size decreases.” 2 AR

99 at bates p. AIRW000392–393. Therefore, the policy is not an administrative or

procedural check-the-box step in the permitting process for applicants; it is a policy

of the state to ensure that TCEQ does not rubber-stamp new projects when there is

sufficient existing infrastructure.

21 Moreover, the regionalization policy was not drafted to be leveraged by permit

applicants or those in opposition thereof. The policy is in place to give the agency the

confines to the broader infrastructure and water quality protection goals of the state

and to effectuate them efficiently.

D. The District Court properly applied the legal standards in reversing and remanding the Permit. The City Council cannot approve annexation, even delayed annexation, or a

waiver thereof without following the appropriate political process. The City of

Georgetown’s Unified Development Code addresses the process for annexation in

Section 3.25 and the process for a development agreement (i.e., the official political

process to waive annexation) in Section 3.20. Both Sections 3.25 and 3.20 outline an

identical process for the initiation, review, and approval of an application. Moreover,

both processes specifically require the approval of the City Council. 2 AR 165 at 75,

82. Therefore, unless specifically authorized, individual officials, such as the city

manager or development director, do not have unilateral authority to approve

annexation or waiver because that job remains with the City Council.

It does not matter whether the staff was acting aligned or contrary to the

wishes of the City Council; they simply do not have the authority to make the

decisions for the City Council. Consequently, it was unreasonable for the Commission

to infer the City Council’s stance based on the city staff who interacted with the

Developers. AIRW Br. at 31.

Further, while AIRW is correct that “the City’s code contains no provision

indicating ‘unless waived’” in Section 3.25, it clearly fails to recognize that the City’s

22 code is a comprehensive scheme that allows for a development agreement in place of

the immediate annexation requirement. AIRW Br. at 25. AIRW also contends that

the City of Georgetown’s Unified Development Code does not explicitly reference

annexation waivers or provide a process to pursue said waivers. Id. This is incorrect

and has been clarified through this Brief. The City may waive annexation through

Development Agreements, which are authorized under Tex. Loc. Gov’t Code

§ 212.172. 2 AR 165 at 75. Indeed, the purpose of a Development Agreement is to

“modify or delay certain requirements of [the] Code [ . . . ] and/or any other provisions

of the City Code of Ordinances in order to present an alternative plan for development

that could not otherwise be accomplished under this Code or the Code of Ordinances.”

Sec. 3.20.010 (emphasis added). These agreements may include delayed annexation

or full waivers. A development agreement may permit the City to modify or delay

certain requirements of the Code in exchange for a compromise on development

standards or land use controls.

Under Section 3.20.030, the City Council has the authority to approve and

enter into Development Agreements. 2 AR 165 at 75. But before an agreement

reaches the City Council for approval, there are a number of procedural steps

required. 2 AR 165 at 74–75. This is because land use conflicts are seldom resolved

though binary outcomes; rather, they are more often the product of negotiation and

political processes. First, to initiate a Development Agreement a property owner or

their authorized agent must make an application. Id. Then application must be

reviewed by a Development Agreement Committee for completeness. 2 AR 165 at 75.

23 This Committee will also complete a more technical review of the application, and

afterwards it will be published for the public. Id. Subsequently, the Planning and

Zoning Commission will hold a Public Hearing and make a recommendation to the

City Council. Id. The City Council then gets the final say in whether to approve the

proposed Development Agreement Id.; See Cent. Power & Light Co. v. City of San

Juan, 962 S.W.2d 602, 612 (Tex. App. 1998) (“It is a well-settled rule that the

governing authorities of cities can express themselves and bind the cities only by

acting together in a meeting duly assembled.”).

In general, cities may only “express and bind themselves [] by way of a duly

assembled meeting,” Grim at 215 (quoting City of San Benito v. Rio Grande Valley

Gas Co., 109 S.W.3d 750, 757 (Tex. 2003)). There were no official assembled meetings

between the City Council and the Developer because there was no formal application

for annexation or a development agreement. There were only a few spread out email

chains and phone calls. See generally 2 AR 101-103; 141–142. None of which

individually or cumulatively can be considered a formal application for a waiver of

the annexation requirement or any other modification to the City’s requirements of

service. If fact, no formal application for service was ever received by the City.

Moreover, the Texas Supreme Court has held that to assess a city’s

determinations, it must first “look [at] official materials such as orders, resolutions,

and minutes.” Whittington at 785. Because there were none available, it was also

reasonable to for the District Court to conclude that the City had made no official

determination. The Supreme Court explained its position on the matter by stating

24 that the “purpose in restricting [its] review to these materials is that the words of one

city council member or city employee do not ordinarily bind the entire city council.”

Id. This reiterates the point. It would be extraordinary for the City Council to be

bound by conversations of City employees, especially those that do not serve on the

Council.

Thus, it was unreasonable for the Commission to attempt to “hold the city to

the terms of its own law” when there very clearly is a process to waive the

requirements of that law. AIRW Br. at 26-27. The City would not need to “set aside

its own law” because there is already a process to obtain a waiver from the law. Id.

Consequently, the District Court correctly noted that “there is no way to know

whether the city council would be willing to waive the annexation requirement.”

Final Judgment. Instead, the District Court’s Order was a call to follow the required

political process and ask those with the power to bind the City. The District Court

does not require that the development obtain services from the City. It requires that

the development subject itself to the minimum political process before unilaterally

deciding that service would be denied.

E. The Commission’s misapplied its own rules in considering hypothetical loss in value. AIRW claims that using the City’s wastewater services would “cost” the new

residential development “tens of millions of dollars,” primarily by lowering the

Development’s value by $20 million. AIRW’s Br. at 1. Not only is a hypothetical loss

in value not a “cost” in the general sense of the word, but it is also a wholly improper

metric for evaluating the cost of connection. Further, nothing in the relevant laws,

25 regulations, or instructions permits TCEQ to take such a broad approach to

quantifying the cost of connection in comparison to the cost to build new

infrastructure.

Reduction in value is a loss of potential profit; cost is a real expenditure. Thus,

the Commission was incorrect to claim that “costs weigh in favor of granting the

AIRW application” when it considered reduction in property value sufficient to tip the

scales in favor of granting the Permit. 1 AR 66 at 11; TCEQ Br. at 26. Specifically,

in reaching its decision, TCEQ attempts to reframe reduction in value as an “economic

cost,” to cover up its misguided cost analysis. TCEQ Br. at 33. TCEQ supports this

error by pointing to AIRW’s testimony, which called the difference between the cost

to connect and the cost to build a new plant a “great disparity.” TCEQ Br. at 34.

However, the administrative record indicates that connection would actually cost

about $284,075 less, including unneeded easement acquisition costs, than

constructing a new stand-alone wastewater package plant. 2 AR 151; 2 AR 134 GT

PFT 000096–98; Cf. 2 AR 91–92. In fact, both sides’ experts agreed that it was more

expensive to construct a new wastewater package than making the needed

improvements to connect to the City’s existing wastewater treatment system. 2 AR

151; 2 AR 91.

It is undisputed that the Commission has the discretion under the

regionalization policy to consider cost, but reduction in value is not a cost. If the

Commission had only considered cost, it would have found that the evidence weighed

in favor of denying the Permit because it cost less to connect to the existing system

26 (which is one of the reasons why the regionalization policy exists in the first place).

Thus, the Commission reached an unreasonable result, that was contrary to the

evidence in the administrative record.

AIRW contends that the record supports the notion that connecting to the

City’s wastewater system would reduce the development’s value by $20 million. AIRW

Br. at 23–24. AIRW reached this conclusion based on the taxes, fees, and other costs

to comply with the City’s requirements (i.e., annexation). Id.; Cf. 2 AR 91. This

reduction in value may very well be an established hypothetical loss of future profit,

but that does not change the TCEQ’s requirement to consider “costs,” (expenditures)

which is the proper metric for evaluating the cost of connection.

Jonah argues that neither the statutes nor guidance provide any specificity

into what evidence is necessary to demonstrate when “an exception to the

Regionalization Policy should be granted based on costs.” Jonah Br. at 26–27. This

is because Jonah ignores that the TCQC has determined what should not be

considered in its decision-making process. See Tex. Tex. Nat. Res. Conservation

Comm’n, Executive Director’s Response to Public Comments Concerning Application

by City of Shamrock MSW Permit No. 2281, Docket No. 2001-0702-MSW at 13–14

(May 11, 2001). Further, Jonah contends that because TCEQ has not denied any

wastewater permit actions based solely on regionalization, it shows that it has

exercised discretion in determining whether to issue a TPDES permit. Jonah Br. at

27. However, the mere fact that TCEQ has not previously denied a permit based on

regionalization does not preclude it from doing so, nor does it obviate their need to

27 correctly apply the regionalization mandate consistent with the law. Tex. Water Code

§§ 26.0282; 26.081; 2 AR 98.

When reviewing a permit application, the Commission can consider several

factors related to public health and environmental protection, as defined by state law

and regulations. Tex. Water Code § 26.003. These factors include environmental

impacts, technical standards, compliance history, public comments, among others.

Sec. 26.028–26.0282. Despite these broad considerations, the TCEQ’s authority

remains limited to issues inside of their jurisdiction. Concerns Outside of TCEQ’s

Authority, available at: https://www.tceq.texas.gov/agency/decisions/participation

/permitting-participation/concerns-outside-of-tceqs-authority. For example, as set by

the Legislature, the TCEQ’s website states what it may consider when reviewing a

permit application. This website shows that TCEQ’s position is that it does not have

the authority to consider (1) noise, (2) zoning, (3) effects on property values, (4)

light pollution, (5) increased traffic, (6) effects on local economy, or (7) historic sites

when reviewing a permit application. Id. Moreover, “When property value issues

have been raised in a hearing request, the Commission has not referred the issue for

contested hearing, based on their lack of statutory authority to do so.” See Tex. Nat.

Res. Conservation Comm’n, Executive Director’s Response to Public Comments

Concerning Application by City of Shamrock MSW Permit No. 2281, Docket No. 2001-

0702-MSW at 13–14 (May 11, 2001); Tex. Nat. Res. Conservation Comm’n, Executive

Director’s Response to Hearing Requests, Hereford MSW Permit No. MSW 2289,

Docket No. 2002-0653-MSW at 12 (June 3, 2002).; Tex. Nat. Res. Conservation

28 Comm’n, Interim Order Concerning Application by the Applerock Group, LLC for

Municipal Solid Waste Permit No. 2276, Docket No. 2001-0681-MSW (Sept. 14, 2001);

Tex. Nat. Res. Conservation Comm’n, Interim Order Concerning City of Hereford

MSW Permit No. MSW-2289, Docket No. 2002-0653-MSW (June 28, 2002).

As a result, TCEQ’s consideration of the alleged reduction in property values

because of rezoning under the guise “connection costs” is misguided and squarely

outside its jurisdiction. Moreover, Jonah’s contention that “Texas’ Regionalization

Policy does not limit what costs the Commission can consider,” is also inconsistent

with its jurisdictional constraints. Jonah Br. at 29. It is true that “the statute does

not limit the Commission’s discretion to consider the cost impacts of the City’s

annexation requirements and development regulations,” but its guidance and

broader statutory requirements do. 2 AR 99.

It is undisputed that after the comparison the various discharge options and

their respective costs, it is less costly to connect to the City’s existing facilities than

to construct the proposed package plant, and contrary to this evidence in the

administrative record, TCEQ concluded that costs weigh in favor of granting the

Application. Thus, TCEQ acted arbitrarily because it considered an irrelevant factor,

explicitly outside of its jurisdiction.

F. Whether the wastewater treatment service is within the City’s ETJ or another’s service area does not affect the Commission’s defective regionalization analysis.

As noted above, the new Development is within the City’s ETJ (outside the

City’s corporate limits). 1 AR 66; 2 AR 161. Contrary to the arguments of AIRW and

29 Jonah, the location of the Development does not affect the City’s ability to serve it

with wastewater services. See Jonah Br. at 31–33; AIRW Br. at 33–34; 2 AR 159.

This is because not only is there a wastewater service connection within three miles

of the Development, but there are also no other legal barriers in the CCN statutes or

PUC rules preventing the City from providing wastewater service to proposed service

area.

It is also undisputed that the City is a retail public utility under the Tex. Water

Code and Commission’s rules. Jonah Br. at 32 . The City is able to serve the

Development with wastewater services like it does for thousands of other Texans.

The only procedural step for the City (because of its retail public utility status) to

complete is to provide the PUC with evidence that it received the required consent to

provide wastewater services within Jonah’s district boundaries. Tex. Water Code §

13.244(c); 16 Tex. Admin. Code § 24.225(c). Moreover, at the time of the May 2022

hearing, Jonah did not provide any wastewater treatment services whatsoever. 4 AR

180 at 253:7–14. Therefore, this is not a matter of a physically remote and infeasible

connection process, but of a future procedural step that may be required.

Furthermore, this procedural step is not a requirement under the Regionalization

analysis, nor is it required to occur prior to the Commission reaching a decision to

issue a discharge permit.

G. TCEQ erred in concluding the Permit is protective of water quality and the existing uses of the receiving waters. The evidence in the administrative record does not support the Commission’s

finding that the Permit is protective of water quality and the existing uses of the

30 receiving waters in accordance with applicable TSWQS, including protection of

aquatic and terrestrial wildlife. Although there is a legal presumption that a TPDES

permit issued by the Commission complies with all state and federal requirements,

the evidence demonstrates that the Draft Permit violates several of these

requirements, each of which are discussed below. See Tex. Gov’t Code § 2003.047(i-1);

Tex. Gov’t Code § 2003.047(i-2).

The Legislature granted the TCEQ the authority to administer Texas’

wastewater permitting program. Tex. Water Code § 26.027. Pursuant to this

authority, TCEQ promulgated the Texas Surface Water Quality Standards

(“TSWQS”), which established the criteria for protecting waters of the state. 30 Tex.

Admin. Code Ch. 307. Under the TSWQS, the policy of the state is:

maintain the quality of water in the state consistent with the public health and enjoyment, the propagation and protection of terrestrial and aquatic life, and the operation of existing industries, taking into consideration the economic development of the state; to encourage and promote the development and use of regional and areawide waste collection, treatment, and disposal systems to serve the waste disposal needs of the citizens of the state; and to require the use of all reasonable methods to implement this policy.

Tex. Water Code § 26.003; 30 Tex. Admin. Code 307.1.

In addition to the regionalization policy, TCEQ undertakes a “technical review”

before issuing a permit for wastewater discharge or other authorized discharges to

the surface waters of the state which considers general standards, narrative

standards, segment specific numeric standards, numeric standards for toxic

substances, and an “antidegradation review.” 30 Tex. Admin. Code § 307.4–5. If

31 sufficiently protective of the waters of the state, the Commission will issue the

resulting permit under the TPDES program. 2 AR 129 at bates p. 0028.

TCEQ alleges the City “did not provide credible evidence that the draft permit

does not comply with [TSWQS].” TCEQ Br. at 42. Meanwhile, AIRW alleges that the

City “failed to introduce any evidence that effluent from the Facility will not maintain

or protect existing uses.” AIRW’s Br. at 36–39. Neither is the case. See e.g., 2 AR

134.

TCEQ attempts to argue that because the Application, the Draft Permit, and

other materials were admitted into record at the preliminary hearing, that the

evidentiary burden is automatically met. TCEQ Br. at 41. This improperly suggests

any data is sufficient data to grant a permit.

H. TCEQ adopted a permit that is noncompliant with its antidegradation policy and procedures. Issuing this Permit to AIRW was an abuse of discretion by TCEQ because the

administrative record provides no reasonable support that the Permit complied with

the antidegradation policy and procedures. It is undisputed that the Commission

staff member Jenna Leug completed an antidegradation review for the Development’s

Permit. TCEQ Br. at 43–44. However, the City’s position remains that the failure to

collect and review the appropriate data results in a materially deficient

antidegradation review process.

When a new permit will increase pollution into water of the state, the TCEQ’s

technical review includes an “antidegradation review” to further ensure that the

water quality will be maintained in accordance with 30 Tex. Admin. Code Ch. 307

32 and TSWQS. See 2 AR 129 at bates p. 071. TCEQ defines degradation as the as the

lowering of water quality by more than a de minimis extent but not to the extent that

the existing use is impaired. 30 Tex. Admin. Code § 307.5(b)(2). When conducting its

antidegradation review, the TCEQ considers “multiple water-quality parameters to

determine whether the discharge will cause an overall lowering of water quality.”

Save Our Springs at *2. This approach includes consideration of both numeric

(quantitative) and narrative (qualitative) metrics of the receiving water body. Id. at

4–5. Although, there are some parameters that are only subject to the general

narrative criteria. Id. at 5. The Texas Supreme Court recently held that the “TCEQ’s

practice of assessing a water body’s overall quality” via numeric and narrative

standards conforms to the current regulatory requirements. Id.

The Commission is guided by the Water Quality Division, Procedures to

Implement the Texas Surface Water Quality Standards (“IPs”) when conducting the

water quality analysis. See 2 AR 129; see also Tex. Water Code § 26.023 (“The

commission by rule shall set water quality standards for the water in the state . . .

[and] has the sole and exclusive authority to set water quality standards for all water

in the state.” The IPs “provide methods for individually evaluating [the water

quality] components”—a “process is consistent with TCEQ’s whole-body approach.”

Save Our Springs at *23 (citing 2 AR 129 at 071–085).

The Commission’s rules outline the antidegradation standards for permitted

discharges into a tiered system that includes three tiers of waterways. 30 Tex. Admin.

Code § 307.5(a)-(b). Under Tier 1, reviews require only that “water quality is

33 sufficiently maintained so that existing uses are protected” and applies to any

pollutant that will impair water quality.” 30 Tex. Admin. Code § 307.5(c)(2)(A). Tier

2 is for fishable and swimmable waters of the state. 30 Tex. Admin. Code §

307.5(c)(2)(B). No regulated activities that would cause degradation of waters of the

state are allowed in Tier 2 (unless it is necessary for an important economic or social

development). 30 Tex. Admin. Code § 307.5(b)(2). Tier 3 is reserved for “outstanding

national resource waters.” 30 Tex. Admin. Code § 307.5(b)(3). The Tier 1 and 2

“antidegradation standards differ but materially overlap” because they bother

require that water quality and the existing uses are maintained to protect such uses.

Save Our Springs at *19 (citing 30 Tex. Admin. Code 307.5(b); § 307.3(27) (defining

“existing uses”)).

Therefore, under these standards, TCEQ may only issue a discharge permit to

AIRW if it determines that the permitted activities are not going to disturb existing

uses or impermissibly degrade water quality. See Save Our Springs. TCEQ did not.

TCEQ maintains that the Permit “does not violate the Commission’s

antidegradation policy.” TCEQ Br. at 43. Yet the administrative record indicates

that the Commission failed to conduct the appropriate inquiry into the uses and

criteria for the receiving water or evaluate the impact on water quality from the

proposed activity. See, e.g., 2 AR 129 at 0034, 0036.

TCEQ claims that the Permit satisfies the Tier 1 requirements, even though

Jenna Lueg failed to consider the codified narrative standard for the protection of

aesthetic values (30 Tex. Admin. Code § 307.4(b), 4 AR 181 at 695:11–14), and that

34 she admitted to not always considering what land uses will be around the receiving

water body. 4 AR 181 at 696:3–4. Even as the TCEQ’s key witness, Ms. Lueg’s

supporting documentation is devoid of any mention of narrative standards; criteria

protective of livestock watering, irrigation, or terrestrial wildlife; and an evaluation

of aquatic life resident in the downgradient stream to which treated wastewater

would eventually flow. 2 AR 73 at bates pp. 0042–0043. Because TCEQ’s failed to

develop information about existing uses, it is impossible for the record to support a

finding that existing uses will be maintained. Thus, TCEQ failed to establish that

the Permit complies with the antidegradation policy of the TSWQS.

I. The AIRW Permit is in violation of applicable requirements regarding nuisance odors. AIRW and TCEQ incorrectly claim that the Permit complies with the

applicable nuisance odor requirements and with Tex. Water Code § 26.030(b). 1 AR

49 at 16–18; 1 AR 50 at 5–6.

Under 30 Tex. Admin. Code § 309.13, a wastewater treatment plant must

comply with site specific location conditions to abate their potential to generate

noxious odors. Thus, if the location conditions are met, a new wastewater treatment

plant will be situated in a “suitable” site. At present, the Permit issued to AIRW

would result in a wastewater treatment plant that is situated in an unsuitable

location.

The minimum location standards for a domestic wastewater treatment facility

are found in Title 30 Tex. Admin. Code Chapter 309, Subchapter B and are used by

the Commission in the “evaluation of an application for a permit to treat and dispose

35 of domestic wastewater.” 30 Tex. Admin. Code § 309.10(a). Under this standard, the

Commission must condition the issuance of a permit for the new domestic wastewater

treatment facility on selection of a site that minimizes the possibility of exposing the

public to nuisance conditions or contamination of water in the state. 30 Tex. Admin.

Code § 309.10(b). The Commission provides three options for applicants to satisfy

the nuisance odor abatement and control requirements: (1) own the buffer zone area,

(2) obtain a restrictive easement from the adjacent property owner for any part of the

buffer zone not currently owned by the Applicant, or (3) prepare a nuisance odor

control plan. Id.

According to the record, AIRW intends to comply with the nuisance odor

requirements by owning the area of the buffer zone. Administrative Report 1.1,

Section 3.B. TCEQ contends that AIRW’s Application establishes ownership of a

150-foot buffer zone based on the map of the property attached to the Application.

TCEQ Br. at 49. The Commission attempts to bolster this evidence by pointing to

Mark Perkins’ testimony. TCEQ Br. at 50. However, neither the map nor testimony

overcame the fact that the 150ft buffer zone is not met.

The Permit only temporarily meets the buffer requirements because the TCEQ

is ignoring the upcoming realignment of County Road 111, which will result in the

loss of the buffer zone (i.e., there will no longer be a road buffering the Proposed

Package Plant from the Patterson Ranch subdivision). 4 AR 180 at 453; see generally

2 AR 89. If the TCEQ had properly considered the evidence in the record, it would

have found that AIRW will be unable to comply with 30 Tex. Admin. Code § 309.13(e)

36 because of the county road realignment and resulting reduction of road buffer. The

TCEQ failed to consider a crucial piece of evidence, one that would result in AIRW

failing to meet the statutory requirements, and thus, acted arbitrarily.

Beyond the nuisance odor requirements, Tex. Water Code § 26.030(b)

mandates that the Commission “consider any unpleasant qualities of the effluent,

including unpleasant odor, any possible adverse effects that the discharge of the

effluent might have on the recreational value of the park, playground, or schoolyard.”

(emphasis added). It is undisputed that the Permit’s proposed discharge route travels

through a residential development and an attendant open “greenspace.” 2 AR 139.

But TCEQ argues that because the evidence shows that the discharge will not go into

any body of water that crosses or abuts any park, playground, or school yard within

one mile of the discharge Tex. Water Code § 26.030(b) is being appropriately followed.

TCEQ Br. at 50–51. That is not the statutory requirement. Tex. Water Code §

26.030(b) mandates that the Commission consider the effects on the recreational

value of a park but does not limit the definition of park to areas denominated as such

by a governmental entity, thereby excluding passive recreational green spaces

attendant to residential developments such as the Patterson Ranch greenspace

immediately downstream of the proposed point of discharge.

Nothing in the record supports TCEQ’s claim that it even considered possible

adverse effects of the discharge because it dismissed the actual uses of the land within

the discharge route. Therefore, TCEQ acted arbitrarily because there is insufficient

evidence to conclude that the Application complies with Tex. Water Code § 26.030(b).

37 J. The Permit does not protect human health or provide for sufficient operational requirements. TCEQ maintains that the Permit is protective of human health and the nearby

residents, despite failing to include conditions to require more frequent monitoring

and other operational requirements to prevent the discharge of partially treated or

wholly untreated wastewater during operational disruptions (which invariably occur

at wastewater treatment facilities) given the nature of the discharge route. TCEQ

Br. at 51. Had the Commission conducted this analysis, it would have discovered the

potential risk of exposure to pathogens (including enteric viruses and E. coli) in

partially treated or untreated wastewater and would have included conditions to

prevent or mitigate such exposure, which could then reasonably support the agency’s

contention that the Permit is protective of human health. Without this information

and such permit conditions , it is unreasonable for TCEQ to maintain that its issued

Permit protects the nearby residents considering the proximity of the point of

discharge to the adjacent Patterson Ranch residential subdivision. Therefore, TCEQ

abused its discretion when it concluded that the Permit is protective of the health of

the nearby residents without collecting the data that would support that conclusion.

Moreover, TCEQ failed to include measures to ensure that inadequately treated

wastewater will not be discharged to the receiving stream (which consists entirely of

untreated wastewater and flows directly through a residential neighborhood). The

Permit will not be protective of human health without the operational controls to

ensure improperly treated wastewater.

38 K. The Permit Application was not substantially complete and accurate. AIRW maintains that the Permit Application was complete and accurate, but

the record proves otherwise. AIRW Br. at 34; See 1 AR 49 at 19–25; 1 AR 50 at 6.

During the application review process, the City identified multiple incomplete and

inaccurate responses, which should have justified an application denial. 1 AR 51 at

59–72. Because the Application was insufficient, TCEQ was prevented from

conducting a full permit analysis, and, as a result, issued a permit unsupported by

the evidence.

Under Tex. Water Code § 26.027(b), permit applicants must submit an

application that contains all information reasonably required by the Commission.

Tex. Water Code § 26.027(b) (emphasis added). Upon receipt and prior to reviewing

the substance of the application permit, TCEQ staff must first ensure the application

is administratively complete (i.e., contains all required information). See 30 Tex.

Admin. Code § 39.418. The Commission will not move forward with a technical

review of a permit application if it is incomplete. Id.

Not only did the Commission improperly move forward with the technical

review, AIRW freely admits that it failed to list 600 Westinghouse Investments, a

co-owner of the facility, and Jonah Water, the operator of the system, on the Permit

Application. AIRW Br. at 35. AIRW contends that because it owns the property

where the wastewater treatment facility would be built, it is the only party that must

be listed. Id. That is not what Tex. Water Code § 26.027(b) asks of an applicant.

Rather, it seeks all information reasonably required by the Commission. Yet AIRW

39 unilaterally decided what information it determined was required for the

Commission to be privy to.

PRAYER

The Application and the Permit fail to comply with the relevant provisions of

Texas law and TCEQ rules. As such, the Application should have been denied, and

the Court should uphold the District Court’s decision to remand the Application to

TCEQ.

40 Respectfully submitted,

SPENCER FANE, LLP 816 Congress Avenue, Suite 1200 Austin, TX 78701 Telephone: (512) 840-4550 Facsimile: (512) 840-4551

William A. Faulk, III State Bar No. 24075674 cfaulk@spencerfane.com Carlota Hopinks-Baul State Bar No. 24094039 chbaul@spencerfane.com Kelsey E. Parker State Bar No. 24143891 kparker@spencerfane.com

ATTORNEYS FOR APPELLEE, CITY OF GEORGETOWN, TEXAS

CERTIFICATE OF COMPLIANCE Based on a word count run in Microsoft Word, this reply brief contains 10,426 words, excluding the portions of the brief exempt from the word count under Texas Rules of Appellate Procedure 9.4(i)(2)(B).

William A. Faulk, III

41 CERTIFICATE OF SERVICE I hereby certify that I have served or will serve a true and correct copy of the foregoing document via hand delivery, facsimile, electronic mail, overnight mail, U.S. mail, or Certified Mail Return Receipt Requested on all parties on this 21st day of July, 2025:

Defendant-Appellant: Texas Commission on Environmental Quality Evan Greene Assistant Solicitor General Evan.Greene@oag.texas.gov Sara J. Ferris Assistant Attorney General Sara.Ferris@oag.texas.gov OFFICE OF THE ATTORNEY GENERAL Environmental Protection Division P.O. Box 12548, MC-066 Austin, Texas 78711-2548 Telephone: (512) 463-2012 Fax: (512) 320-0911

Intervenor Defendants-Appellants: AIRW 2017-7, L.P.; 600 Westinghouse Investments, LLC; and 800 Westinghouse Investments, LLC Andrew Davis Andrew@lkcfirm.com William T. Thompson will@lkcfirm.com Todd Disher todd@lkcfirm.com Michael C. Cotton michael@lkcfirm.com LEHOTSKY KELLER COHN, LLP 408 W. 11th Street, 5th Floor Austin, TX 78701 Telephone: 512-693-8350

42 Helen S. Gilbert hgilbert@bartonbensonjones.com BARTON BENSON JONES, PLLC 7000 North MoPac Expressway, Suite 200 Austin, Texas 78731

Edmond McCarthy Ed@ermlawfirm.com MCCARTHY & MCCARTHY, LLP 122 Colorado St. Suite 2399 Austin, TX 78701

Intervenor-Defendant / Appellant Jonah Water Special Utility District: John J. Carlton john@carltonlawaustin.com Kelli A. N. Carlton kelli@carltonlawaustin.com Erin R. Selvera erin@carltonlawaustin.com THE CARLTON LAW FIRM, P.L.L.C. 4301 Westbank Drive, Suite B-130 Austin, TX 78746

William A. Faulk, III

43 APPENDIX TO BRIEF OF APPELLEE CITY OF GEORGETOWN, TEXAS

Appendix Description Item 1 Texas Government Code Provisions  Tex. Gov’t Code Ann. § 2001.171  Tex. Gov’t Code §§ 2001.001 2 Texas Local Government Code Provisions  Tex. Loc. Gov’t Code § 212.172 3 Texas Water Code Provisions  Tex. Water Code § 26.023 4 Texas Administrative Code Provisions  30 Tex. Admin. Code § 39.418  30 Tex. Admin. Code § 305.1  30 Tex. Admin. Code § 309.10(a) 5 TCEQ Webpage “Concerns Outside of TCEQ’s Authority”1

1 https://www.tceq.texas.gov/agency/decisions/participation/permitting-participation/concerns-outside-of-tceqs- authority APPENDIX 1 § 2001.171. Judicial Review, TX GOVT § 2001.171

Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 10. General Government (Refs & Annos) Subtitle A. Administrative Procedure and Practice Chapter 2001. Administrative Procedure (Refs & Annos) Subchapter G. Contested Cases: Judicial Review (Refs & Annos)

V.T.C.A., Government Code § 2001.171

§ 2001.171. Judicial Review

Currentness

A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.

Credits Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.

Notes of Decisions (361)

O’CONNOR’S CROSS REFERENCES See also O'Connor's Texas COA, “Administrative remedies,” ch. 24-A, §2.8.

V. T. C. A., Government Code § 2001.171, TX GOVT § 2001.171 Current through legislation effective June 20, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 § 2001.001. Purpose, TX GOVT § 2001.001

Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 10. General Government (Refs & Annos) Subtitle A. Administrative Procedure and Practice Chapter 2001. Administrative Procedure (Refs & Annos) Subchapter A. General Provisions (Refs & Annos)

V.T.C.A., Government Code § 2001.001

§ 2001.001. Purpose

Currentness

It is the public policy of the state through this chapter to:

(1) provide minimum standards of uniform practice and procedure for state agencies;

(2) provide for public participation in the rulemaking process; and

(3) restate the law of judicial review of state agency action.

Credits Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.

Editors' Notes

REVISOR'S NOTE

2016 Main Volume

The revised law omits the portion of the source law that states that a purpose of the act is to “provide adequate and proper public notice of proposed agency rules and agency actions through publication of a state register.” The omitted provision refers to the Texas Register. The provisions of the source law that relate primarily to the Texas Register have been separately codified in Chapter 2002 of this code.

Notes of Decisions (15)

V. T. C. A., Government Code § 2001.001, TX GOVT § 2001.001 Current through legislation effective June 20, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 APPENDIX 2 § 212.172. Development Agreement, TX LOCAL GOVT § 212.172

KeyCite Yellow Flag Proposed Legislation

Vernon's Texas Statutes and Codes Annotated Local Government Code (Refs & Annos) Title 7. Regulation of Land Use, Structures, Businesses, and Related Activities Subtitle A. Municipal Regulatory Authority Chapter 212. Municipal Regulation of Subdivisions and Property Development (Refs & Annos) Subchapter G. Agreement Governing Certain Land in a Municipality's Extraterritorial Jurisdiction (Refs & Annos)

V.T.C.A., Local Government Code § 212.172

§ 212.172. Development Agreement

Currentness

(a) In this subchapter:

(1) “Adjudication” of a claim means the bringing of a civil suit and prosecution to final judgment in county or state court and includes the bringing of an authorized arbitration proceeding and prosecution to final resolution in accordance with any mandatory procedures established in the contract agreement for the arbitration proceedings.

(2) “Contract” means a contract for a development agreement authorized by this subchapter.

(3) “Extraterritorial jurisdiction” means a municipality's extraterritorial jurisdiction as determined under Chapter 42.

(b) The governing body of a municipality may make a written contract with an owner of land that is located in the extraterritorial jurisdiction of the municipality to:

(1) guarantee the continuation of the extraterritorial status of the land and its immunity from annexation by the municipality;

(2) extend the municipality's planning authority over the land by providing for a development plan to be prepared by the landowner and approved by the municipality under which certain general uses and development of the land are authorized;

(3) authorize enforcement by the municipality of certain municipal land use and development regulations in the same manner the regulations are enforced within the municipality's boundaries;

(4) authorize enforcement by the municipality of land use and development regulations other than those that apply within the municipality's boundaries, as may be agreed to by the landowner and the municipality;

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 § 212.172. Development Agreement, TX LOCAL GOVT § 212.172

(5) provide for infrastructure for the land, including:

(A) streets and roads;

(B) street and road drainage;

(C) land drainage; and

(D) water, wastewater, and other utility systems;

(6) authorize enforcement of environmental regulations;

(7) provide for the annexation of the land as a whole or in parts and to provide for the terms of annexation, if annexation is agreed to by the parties;

(8) specify the uses and development of the land before and after annexation, if annexation is agreed to by the parties; or

(9) include other lawful terms and considerations the parties consider appropriate.

(b-1) At the time a municipality makes an offer to a landowner to enter into an agreement under this subchapter, the municipality must provide the landowner with a written disclosure that includes:

(1) a statement that the landowner is not required to enter into the agreement;

(2) the authority under which the municipality may annex the land with references to relevant law;

(3) a plain-language description of the annexation procedures applicable to the land;

(4) whether the procedures require the landowner's consent; and

(5) a statement regarding the municipality's waiver of immunity to suit.

(b-2) An agreement for which a disclosure is not provided in accordance with Subsection (b-1) is void.

(c) A contract must:

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 § 212.172. Development Agreement, TX LOCAL GOVT § 212.172

(1) be in writing;

(2) contain an adequate legal description of the land;

(3) be approved by the governing body of the municipality and the landowner; and

(4) be recorded in the real property records of each county in which any part of the land that is subject to the contract is located.

(d) The total duration of the contract and any successive renewals or extensions may not exceed 45 years.

(e) A municipality in an affected county, as defined by Section 16.341, Water Code, may not enter into a contract that is inconsistent with the model rules adopted under Section 16.343, Water Code.

(f) The contract between the governing body of the municipality and the landowner is binding on the municipality and the landowner and on their respective successors and assigns for the term of the contract. The contract is not binding on, and does not create any encumbrance to title as to, any end-buyer of a fully developed and improved lot within the development, except for land use and development regulations that may apply to a specific lot. Annexation by a municipality of land subject to a contract does not invalidate the enforceability of the contract or infringe on the rights of a party to adjudicate a claim arising under the contract.

(g) A contract:

(1) constitutes a permit under Chapter 245; and

(2) is a program authorized by the legislature under Section 52-a, Article III, Texas Constitution.

(h) A contract between a municipality and a landowner entered into prior to the effective date of this section, or any amendment to this section, and that complies with this section is validated, enforceable, and may be adjudicated subject to the terms and conditions of this subchapter, as amended.

(i) A municipality that enters into a contract waives immunity from suit for the purpose of adjudicating a claim for breach of the contract.

(j) Except as provided by Subsection (k), actual damages, specific performance, or injunctive relief may be granted in an adjudication brought against a municipality for breach of a contract. The total amount of money awarded in an adjudication brought against a municipality for breach of a contract is limited to the following:

(1) the balance due and owed by the municipality under the contract as it may have been amended;

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 § 212.172. Development Agreement, TX LOCAL GOVT § 212.172

(2) any amount owed by the landowner as a result of the municipality's failure to perform under the contract, including compensation for the increased cost of infrastructure as a result of delays or accelerations caused by the municipality;

(3) reasonable attorney's fees; and

(4) interest as allowed by law, including interest as calculated under Chapter 2251, Government Code.

(k) Damages awarded in an adjudication brought against a municipality for breach of a contract may not include:

(1) consequential damages, except as expressly allowed under Subsection (j)(2); or

(2) exemplary damages.

Credits Added by Acts 2003, 78th Leg., ch. 522, § 1, eff. June 20, 2003. Amended by Acts 2011, 82nd Leg., ch. 281 (H.B. 1643), § 1, eff. June 17, 2011; Acts 2021, 87th Leg., ch. 103 (S.B. 1338), § 2, eff. Sept. 1, 2021; Acts 2021, 87th Leg., ch. 678 (H.B. 1929), § 1, eff. Sept. 1, 2021.

V. T. C. A., Local Government Code § 212.172, TX LOCAL GOVT § 212.172 Current through legislation effective June 20, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 APPENDIX 3 § 26.023. Water Quality Standards, TX WATER § 26.023

KeyCite Yellow Flag Proposed Legislation

Vernon's Texas Statutes and Codes Annotated Water Code (Refs & Annos) Title 2. Water Administration (Refs & Annos) Subtitle D. Water Quality Control Chapter 26. Water Quality Control (Refs & Annos) Subchapter B. General Powers and Duties

V.T.C.A., Water Code § 26.023

§ 26.023. Water Quality Standards

Currentness

The commission by rule shall set water quality standards for the water in the state and may amend the standards from time to time. The commission has the sole and exclusive authority to set water quality standards for all water in the state. The commission shall consider the existence and effects of nonpoint source pollution, toxic materials, and nutrient loading in developing water quality standards and related waste load models for water quality. The commission shall develop standards based on all quality assured data obtained by the commission, including the local watershed and river basin database described by Section 26.0135(c) (2). In this section, “quality assured data” has the meaning assigned by Section 26.0135(i).

Credits Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.072, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 294, § 3, eff. June 7, 1991; Acts 1997, 75th Leg., ch. 101, § 3, eff. Sept. 1, 1997.

Notes of Decisions (2)

V. T. C. A., Water Code § 26.023, TX WATER § 26.023 Current through legislation effective June 20, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 APPENDIX 4 § 39.418. Notice of Receipt of Application and Intent to..., 30 TX ADC § 39.418

Texas Administrative Code Title 30. Environmental Quality Part 1. Texas Commission on Environmental Quality Chapter 39. Public Notice Subchapter H. Applicability and General Provisions

30 TAC § 39.418

§ 39.418. Notice of Receipt of Application and Intent to Obtain Permit

Currentness

(a) When the executive director determines that an application is administratively complete, the Office of the Chief Clerk (chief clerk) shall mail this determination concurrently with the Notice of Receipt of Application and Intent to Obtain Permit to the applicant.

(b) Not later than 30 days after the executive director declares an application administratively complete:

(1) the applicant, other than applicants for air quality permits, shall publish Notice of Receipt of Application and Intent to Obtain Permit once under §39.405(f)(1) of this title (relating to General Notice Provisions) and, for solid waste applications and injection well applications, also under §39.405(f)(2) of this title. The applicant shall also publish the notice under §39.426 of this title (relating to Alternative Language Requirements), if applicable;

(2) the chief clerk shall mail Notice of Receipt of Application and Intent to Obtain Permit to those listed in §39.413 of this title (relating to Mailed Notice), and to:

(A) the state senator and representative who represent the general area in which the facility is located or proposed to be located; and

(B) the river authority in which the facility is located or proposed to be located if the application is under Texas Water Code, Chapter 26; and

(3) the notice must include the applicable information required by §39.411(b) of this title (relating to Text of Public Notice).

(c) For air quality permit applications, except applications for plant-wide applicability limit permits under Chapter 116, Subchapter C of this title (relating to Plant-Wide Applicability Limits), the applicant shall provide notice as specified in Subchapter K of this chapter (relating to Public Notice of Air Quality Permit Applications). Specifically, publication in the newspaper must follow the requirements under §39.603 of this title (relating to Newspaper Notice), sign posting must follow the requirements under §39.604 of this title (relating to Sign-Posting), and the chief clerk shall mail notice according to §39.602 of this title (relating to Mailed Notice). The applicant shall also follow the requirements, as applicable, under §39.426 of this title.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 § 39.418. Notice of Receipt of Application and Intent to..., 30 TX ADC § 39.418

Credits Source: The provisions of this §39.418 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective September 16, 2021, 46 TexReg 5784.

Current through 50 Tex.Reg. No. 3702, dated June 20, 2025, as effective on or before June 27, 2025. Some sections may be more current. See credits for details.

30 TAC § 39.418, 30 TX ADC § 39.418

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 § 305.1. Scope and Applicability, 30 TX ADC § 305.1

Texas Administrative Code Title 30. Environmental Quality Part 1. Texas Commission on Environmental Quality Chapter 305. Consolidated Permits Subchapter A. General Provisions

30 TAC § 305.1

§ 305.1. Scope and Applicability

Currentness

(a) The provisions of this chapter set the standards and requirements for applications, permits, and actions by the commission to carry out the responsibilities for management of waste disposal activities under Texas Water Code, Chapters 26-28 and 32, and Texas Health and Safety Code, Chapters 361 and 401.

(b) The national pollutant discharge elimination system (NPDES) program, as delegated to the State of Texas, requires permits for the discharge of pollutants from any point source to waters in the state. Such permits are designated as Texas pollutant discharge elimination system (TPDES). The terms “NPDES,” “pollutant,” “point source,” and “waters in the state” are defined in Texas Water Code, § 26.001.

(1) The following are point sources requiring TPDES permits for discharges:

(A) concentrated animal feeding operations as defined in Chapter 321, Subchapter B of this title (relating to Concentrated Animal Feeding Operations);

(B) concentrated aquatic animal production facilities as defined in 40 Code of Federal Regulations (CFR) § 122.24;

(C) discharges into aquaculture projects as set forth in 40 CFR § 122.25;

(D) discharges from separate storm sewers as set forth in 40 CFR § 122.26; and

(E) silvicultural point sources as defined in 40 CFR § 122.27.

(2) The TPDES permit program also applies to owners or operators of any treatment works treating domestic sewage, unless all requirements implementing Clean Water Act (CWA), § 405(d), applicable to the treatment works treating domestic sewage are included in a permit issued under the appropriate provisions of Subtitle C, the Federal Solid Waste Disposal Act, the Safe Drinking Water Act, Part C, the Marine Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under state permit programs approved by the regional administrator as adequate to assure compliance with CWA, § 405.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 § 305.1. Scope and Applicability, 30 TX ADC § 305.1

(3) The executive director may designate any person subject to the standards for sewage sludge use and disposal as a “treatment works treating domestic sewage” as defined in § 305.2 of this title (relating to Definitions), where the executive director finds that a permit is necessary to protect public health and the environment from the adverse effects of sewage sludge or to ensure compliance with the technical standards for sludge use and disposal developed under CWA, § 405(d). Any person designated as a treatment works treating domestic sewage shall submit an application for a permit within 120 days of being notified by the executive director that a permit is required. The executive director's decision to designate a person as a treatment works treating domestic sewage shall be stated in the fact sheet or statement of basis for the permit.

Credits Source: The provisions of this § 305.1 adopted to be effective June 19, 1986, 11 TexReg 2591; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective July 5, 2006, 31 TexReg 5333.

Current through 50 Tex.Reg. No. 3702, dated June 20, 2025, as effective on or before June 27, 2025. Some sections may be more current. See credits for details.

30 TAC § 305.1, 30 TX ADC § 305.1

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 § 309.10. Purpose, Scope, and Applicability, 30 TX ADC § 309.10

Texas Administrative Code Title 30. Environmental Quality Part 1. Texas Commission on Environmental Quality Chapter 309. Domestic Wastewater Effluent Limitation and Plant Siting Subchapter B. Location Standards

30 TAC § 309.10

§ 309.10. Purpose, Scope, and Applicability

Currentness

(a) This subchapter establishes minimum standards for the location of domestic wastewater treatment facilities. These standards are to be applied in the evaluation of an application for a permit to treat and dispose of domestic wastewater and for obtaining approval of construction plans and specifications. This subchapter applies to domestic wastewater permit applications and construction plans and specifications filed on or after October 8, 1990, for new facilities and substantial changes in the function or use of existing units.

(b) The purpose of this subchapter is to condition issuance of a permit and/or approval of construction plans and specifications for new domestic wastewater treatment facilities or the substantial change in the function or use of an existing unit on selection of a site that minimizes possible contamination of water in the state; to define the characteristics that make an area unsuitable or inappropriate for a wastewater treatment facility; to minimize the possibility of exposing the public to nuisance conditions; and to prohibit issuance of a permit for a facility to be located in an area determined to be unsuitable or inappropriate, unless the design, construction, and operational features of the facility will mitigate the unsuitable site characteristics.

Credits Source: The provisions of this §309.10 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective January 9, 2020, 45 TexReg 370.

Current through 50 Tex.Reg. No. 3702, dated June 20, 2025, as effective on or before June 27, 2025. Some sections may be more current. See credits for details.

30 TAC § 309.10, 30 TX ADC § 309.10

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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