ACCEPTED 15-24-00132-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 9/19/2025 3:50 PM No. 15-24-00132-CV CHRISTOPHER A. PRINE CLERK IN THE FIFTEENTH COURT OF APPEALS FILED IN AUSTIN, TEXAS 15th COURT OF APPEALS AUSTIN, TEXAS 9/19/2025 4:31:28 PM AIRW 2017-7, L.P.; 600 WESTINGHOUSE INVESTMENTS, LLC; 800 CHRISTOPHER A. PRINE WESTINGHOUSE INVESTMENTS, LLC; TEXAS COMMISSION ClerkON ENVIRONMENTAL QUALITY; AND JONAH WATER SPECIAL UTILITY DISTRICT, Appellants
v.
CITY OF GEORGETOWN, TEXAS, Appellee.
On Appeal from the 261st District Court, Travis County, Texas Trial Court Cause No. D1-GN-23-001004 REPLY BRIEF OF APPELLANT JONAH WATER SPECIAL UTILITY DISTRICT
John J. Carlton State Bar No. 03817600
Kelli A. N. Carlton State Bar No. 15091175
Erin R. Selvera State Bar No. 24043385
THE CARLTON LAW FIRM, P.L.L.C. 4301 Westbank Drive, Suite B-130 Austin, Texas 78746 john@carltonlawaustin.com kelli@carltonlawaustin.com erin@carltonlawaustin.com Telephone: (512) 614-0901 Facsimile: (512) 900-2855 ATTORNEYS FOR JONAH WATER SPECIAL UTILITY DISTRICT
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii GLOSSARY OF ACRONYMS AND TECHNICAL TERMS ................................ vi SUMMARY OF THE ARGUMENT .........................................................................1 ARGUMENT .............................................................................................................3 I. The District Court erred in reversing and remanding the matter to the agency..3 A. The District Court failed to consider the evidence in the record as whole. ....4 B. The District Court also failed to apply the proper legal standard when considering the City’s arguments. ..........................................................................4 1. The City fails to identify a substantial right that has been prejudiced.........5 2. The City has failed to establish how it was harmed by the Commission’s decision to issue the permit to AIRW. .................................................................7 II. The City’s misinterpretation of the requirements for permit issuance is not a basis for reversible error.............................................................................................9 A. Diminution of Property Value is a valid cost factor......................................10 B. AIRW’s actions constitute denial of service. ................................................11 C. The State’s Regionalization Policy does not create a mandatory duty for TCEQ to deny the permit to AIRW......................................................................13 D. The State’s Regionalization Policy does not equate to a legal right for the City to serve the AIRW development. .................................................................14 E. Lack of Consent from Jonah is a bar to the City becoming the service provider for the AIRW development....................................................................15 1. Consent is an independent legal requirement under Texas Water Code § 13.244(c). ..........................................................................................................16 2. It is irrelevant whether Jonah has a wastewater CCN or facilities available to serve the AIRW development. ......................................................................17
ii 3. The location of the AIRW development imposes additional requirements that include seeking Jonah’s consent if the City desires to be the service provider..............................................................................................................18 CONCLUSION AND PRAYER ..............................................................................19 CERTIFICATE OF COMPLIANCE .......................................................................21 CERTIFICATE OF SERVICE .................................................................................22
iii INDEX OF AUTHORITIES Cases Bizios v. Town of Lakewood Vill., 453 S.W.3d 598 (Tex. App.—Fort Worth 2014), aff’d, 493 S.W.3d 527 (Tex. 2016). ........................................................................8 Cf. Nobles v. Employees Ret. Sys. of Tex., 53 S.W.3d 483, 489 (Tex. App.—Austin 2001, no pet.). .........................................................................................................7 Dyer v. Tex. Comm’n on Env’t Quality, 646 S.W.3d 498, 514 (Tex. 2022). ..........2, 4 Nueces Canyon Consolidated I.S.D. v. Central Education Agency, 917 S. W. 2d 773, 777 (Tex. 1996)...............................................................................................6 Office of Pub. Util. Counsel v. Pub. Util. Comm’n, 185 S.W.3d. 555, 576 (Tex. App.—Austin 2006, pet. denied)............................................................................5 Pub. Util. Com. v. Gulf States Utils. Co., 809 S.W.2d 201 (Tex. 1991). ...................4 Save Our Springs All., Inc. v. Texas Comm’n on Env't Quality, 713 S.W.3d 308, 320 (Tex. 2025), reh’g denied (June 20, 2025) (quoting Tex. Gov’t Code § 2001.174). .............................................................................................................13 Tex. Health Facilities Com. v. Charter Med.-Dallas, Inc., 665 S.W.2d 446 (Tex. 1984) .......................................................................................................................5 Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452 (Tex. 1984)..............................................................................................................4 Vandygriff v. First Sav. & Loan Asso., 617 S.W.2d 669, 672 (Tex. 1981).................6 Statutes Tex. Gov’t Code § 2001.174(1) and (2)(A)-(F) .........................................................5 Tex. Gov’t Code § 2001.174(2)(E) ............................................................................4 Tex. Gov’t Code § 2001.174(2). ................................................................................7 Tex. Loc. Gov’t Code § 51.072. .................................................................................6 Tex. Loc. Gov’t Code Ann. § 212.003 .......................................................................8 Tex. Loc. Gov’t Code Ann. § 42.021. ........................................................................8 Tex. Water Code § 13.042. .......................................................................................18 Tex. Water Code § 13.244(c). ....................................................................... 7, 16, 18 Tex. Water Code § 26.003. .......................................................................................14 Tex. Water Code § 26.0282. .....................................................................................13 Tex. Water Code §§13.242(c) and 13.243. ..............................................................18
iv Tex. Water Code § 13.244(c) ...................................................................................17 Tex. Water Code § 13.244(c). ........................................................................... 14, 17 Tex. Water Code § 26.081 ........................................................................................14 Tex. Water Code §§ 26.003 and 26.0282. ................................................................16 Other Authorities Black’s Law Dictionary 1324 (6th Ed. 1990). ............................................................6
v GLOSSARY OF ACRONYMS AND TECHNICAL TERMS
Term Meaning
AIRW Intervenor AIR-W 2017-7, L.P., Applicant and Intervenor Defendant-Appellant
APA Administrative Procedure Act, Tex. Govt. Code §§ 2001.001- .903
Application AIR-W 2017-7, L.P.’s application for a new TPDES permit filed with the TCEQ on April 6, 2020
AR Administrative Record contained within the SCR
CCN Certificate of Convenience and Necessity
City City of Georgetown, Plaintiff-Appellee
Commission Appellant Texas Commission on Environmental Quality (TCEQ)
ETJ Extraterritorial Jurisdiction
Final Order Final Order issued by TCEQ on November 28, 2022
FOF Finding of Fact
Jonah Jonah Water Special Utility District, Intervenor Defendant- Appellant
Order TCEQ’s final order, issued November 28, 2022
Permit TPDES Permit Number WQ0015878001
Regionalization The combination of Tex. Water Code §§ 26.003, 26.081, and Policy 26.0282, as well as Texas’ Regionalization Guidance – Information posted on TCEQ website at https://www.tceq.texas.gov/permitting/wastewater/tceq- regionalization-for-wastewater
SOAH State Office of Administrative Hearings
vi TAC Texas Administrative Code
TCEQ Texas Commission on Environmental Quality (“Commission”) Defendant-Appellant
TPDES Texas Polluant Discharge Elimination System
TWC Texas Water Code
vii SUMMARY OF THE ARGUMENT
Georgetown provides no colorable argument or basis to find that the
Commission committed reversible error. The City’s skewed arguments merely signal
its displeasure with the Commission’s Order and the City’s deep desire to be the
wastewater service provider for Appellant, AIRW’s development. Georgetown’s
brief focuses on two issues that are not dispositive regarding compliance or
consistency with Texas’ Regionalization Policy.
The District Court considered the City’s plethora of arguments challenging
TCEQ’s decision to issue the permit to AIRW, and disposed of all issues but two:
1. Defendant erred by determining that the Permit complies with Texas’s regionalization policy. 2. Because Intervenor AIRW failed to seek a waiver from Plaintiff’s city council, there is no way to know whether the city council would be willing to waive the annexation requirement. It is unreasonable to assume that City staff—who are bound by the city council—speak for the city council, which is not bound and has both the power to waive requirements and the ability to act under political considerations. This means that Defendant should not have determined both that (1) Plaintiff denied Intervenor AIRW service; and (2) connection to Plaintiff’s system would cost Intervenor AIRW $20 million.
Now, the City urges this court to re-weigh evidence regarding these two points
and the other alleged errors in the City’s original appeal. When you strip away the
issues disposed of by the District Court, the City’s arguments are reduced to just two
aspects of the TCEQ’s regionalization analysis: denial of service and cost. It is
1 undisputed that TCEQ has broad discretion regarding consideration of Texas’
Regionalization Policy – the City admits as much in its brief. Georgetown’s Br. at
15, 26, 29. The City’s arguments regarding cost and denial of service are flawed.
Additionally, the City failed to identify a substantial right prejudiced by the
Commission’s Order and failed to establish any harm that it will suffer if the
Commission’s order is affirmed as required by Dyer. Dyer v. Tex. Comm’n on Env’t
Quality, 646 S.W.3d 498, 514 (Tex. 2022). The existence of City infrastructure with
capacity to provide wastewater service does not equate to a legal right to serve, nor
a mandatory duty for TCEQ to deny the permit to AIRW. Because the City has no
statutory or constitutional right to provide wastewater service to the AIRW
development, the City has failed to show that its substantial rights have been
prejudiced. The City has shown no concrete, particularized actual or imminent injury
to its substantial rights to support the District Court’s ruling.
Furthermore, the City’s myopic focus on the cost and denial of service aspects
of regionalization are a mere distraction. Even if the City’s regionalization
arguments were substantiated, the City would remain in the very same position:
without any authority to provide wastewater service to the AIRW development.
Regardless of whether TCEQ committed reversible error, an act the City has failed
to prove, the Court cannot grant the true relief the City seeks (to be the service
2 provider) for one definitive reason: Appellant, Jonah Water Special Utility District
has not granted consent for the City to provide wastewater service within Jonah’s
District boundaries. None of the City’s substantial rights have been prejudiced, and
without a showing of harm that the Court can address, the District Court had no basis
to reverse and remand the matter to the Commission. This court must reverse the
District Court’s judgment and affirm the underlying Order granting the permit.
ARGUMENT
I. The District Court erred in reversing and remanding the matter to the agency.
The District Court issued its Final Judgment reversing and remanding TCEQ’s
Order for further proceedings, asserting the following reasons:
1. Defendant erred by determining that the Permit complies with Texas’ regionalization policy. 2. Because Intervenor AIRW failed to seek a waiver from Plaintiff’s city council, there is no way to know whether the city council would be willing to waive the annexation requirement. It is unreasonable to assume that City staff – who are bound by the city council-speak for the city council, which is not bound and has both the power to waive requirements and the ability to act under political considerations. This means that Defendant should not have determined both that (1) Plaintiff’s denied Intervenor AIRW service; and (2) connection to Plaintiff’s system would cost Intervenor AIRW $20 million. Final Judgment.
3 A. The District Court failed to consider the evidence in the record as whole.
Under the substantial evidence standard, the Appellate Court’s inquiry is
whether the Commission’s decision is reasonably supported by substantial evidence
in view of the reliable and probative evidence in the record as a whole. Tex. Gov’t
Code § 2001.174(2)(E); Pub. Util. Com. v. Gulf States Utils. Co., 809 S.W.2d 201
(Tex. 1991). The “evidence in the record actually may preponderate against the
decision of the agency and nonetheless amount to substantial evidence.” Tex. Health
Facilities Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452 (Tex. 1984).
Instead of considering the evidence in the record as a whole, giving due
consideration to the fact that the evidence may preponderate against the TCEQ, the
District Court focused on two factors of Texas’ regionalization policy that are not
independently dispositive: denial of service and cost. Consequently, as a matter of
law, the District Court’s decision is fatally flawed and must be reversed.
B. The District Court also failed to apply the proper legal standard when considering the City’s arguments.
To reverse and remand the matter to the agency, the District Court must first
have found that the City’s substantial rights were prejudiced. Dyer v. Tex. Comm’n
on Env’t Quality, 646 S.W.3d 498, 514 (Tex. 2022). (“Not only must the agency’s
challenged findings, inferences, conclusions or decisions be faulty as a matter of
law; they must also prejudice the substantial rights of the appellant.” (internal
4 quotation marks omitted). The City did not establish at the District Court, nor in its
appellate brief to this Court, that its substantial rights were prejudiced and the
Court’s ruling was silent regarding this requirement. Further, although the City
describes the errors that it asserts the TCEQ committed, the City failed to establish
how it was harmed by the Commission’s decision. Procedural irregularities “do not
warrant reversal absent a showing of harm.” Office of Pub. Util. Counsel v. Pub. Util.
Comm’n, 185 S.W.3d. 555, 576 (Tex. App.—Austin 2006, pet. denied).
1. The City fails to identify a substantial right that has been prejudiced.
The Administrative Procedures Act (“APA”) §§ 2001.174 (2)(A)-(F)
describes the six ways in which an agency can prejudice a substantial right, and the
City correctly cites these six factors. Tex. Gov’t Code § 2001.174(1) and (2)(A)-(F);
Georgetown’s Br. at 4. The City’s brief also discusses what it perceives as errors
committed by the TCEQ, but does not identify the harm it suffered, nor what
substantial right it has that was prejudiced by the Commission’s action.
Georgetown’s Br. at 7-21, 25-40. Mere assertion and proof that error occurred is
insufficient for reversal of the agency order. The party must establish that such error
was not only harmful, but in fact, prejudiced one’s substantial rights. Tex. Health
Facilities Com. v. Charter Med.-Dallas, Inc., 665 S.W.2d 446 (Tex. 1984); Nueces
5 Canyon Consolidated I.S.D. v. Central Education Agency, 917 S. W. 2d 773, 777
(Tex. 1996); Vandygriff v. First Sav. & Loan Asso., 617 S.W.2d 669, 672 (Tex. 1981).
Substantial rights are not defined in the APA. A “right” is generally defined as
a power, privilege, or immunity guaranteed under the Constitution, statutes,
decisions, laws, or are claimed as a result of long usage. Black’s Law Dictionary
1324 (6th Ed. 1990). The City, a home rule municipality, has authority of local self-
government. Tex. Loc. Gov’t Code § 51.072. However, the City has no statutory or
constitutional right to force AIRW to annex into the City, to force AIRW to take
wastewater service from the City, or to provide service outside its corporate
boundaries and outside its certificated service area to the AIRW development. After
a full hearing on the merits by the State Office of Administrative Hearings, the
Commission found that, “No part of the Facility or development is within the City’s
corporate limits.” and “The proposed Facility and its discharge are within the City’s
extraterritorial jurisdiction.”. 1 AR 66 at 10 FOF 34 and 35. The Commission also
found that, “There is no regional provider designated for the area where the Facility
is proposed to be located.” and “The proposed Facility and its discharge are not
within the sewer CCN of any retail public utility.” 1 AR 66 at 10 FOF 49 and 50.
Unlike Jonah, which has a statutory right to protect its district boundaries and
to grant or deny consent to entities seeking to serve within the District, the City has
6 no such right. Tex. Water Code § 13.244(c). The City has not been conferred a right,
power, privilege, or immunity related to wastewater service or permitting for the
AIRW development under the Constitution, state statutes, commission rules, or court
decisions. Lacking a substantial right, the City has failed to demonstrate how its
substantial rights were prejudiced. Without prejudice to a substantial right, the
District Court erred by reversing and remanding the matter. Consequently, this Court
must reverse the District Court’s decision and affirm the TCEQ’s issuance of the
permit to AIRW.
2. The City has failed to establish how it was harmed by the Commission’s decision to issue the permit to AIRW.
The City’s brief is completely devoid of any discussion of harm or injury that
the City has sustained that would warrant remand and reversal. Cf. Nobles v.
Employees Ret. Sys. of Tex., 53 S.W.3d 483, 489 (Tex. App.—Austin 2001, no pet.).
(“An appellate court reviews an agency decision for reversible error; harmless error
does not merit reversal. A showing of injury to the claimant is necessary before
reversal is the appropriate remedy.” Tex. Gov’t Code § 2001.174(2).
The record confirms that AIRW’s proposed wastewater treatment plant will
not be located within the City limits where the City enjoys broad authority. 1 AR 66
at 10 FOF 34. Instead, the wastewater plant will be located in the City’s ETJ,
7 partially within Jonah’s District boundaries and wholly within Jonah’s water CCN
area. 1 AR 66 at 10-11 FOF 35, 51. An extraterritorial jurisdiction (ETJ) is an
unincorporated area that is contiguous to the corporate boundaries of a municipality
and is located within a specified distance of those boundaries depending upon the
municipality’s population. Tex. Loc. Gov’t Code Ann. § 42.021. In the ETJ, the City
has very limited authority to regulate. A municipality’s power normally ends at the
city limit and does not automatically include the municipality’s ETJ; rather, a city
may only extend its authority to the ETJ if authorized by the state. Bizios v. Town of
Lakewood Vill., 453 S.W.3d 598 (Tex. App.—Fort Worth 2014), aff’d, 493 S.W.3d
527 (Tex. 2016). The limited authority granted by state law does not include
authority to regulate water service or water quality beyond its boundaries. See Tex.
Loc. Gov’t Code Ann. § 212.003 that sets limits on a municipality’s authority. This
leaves any potential harm to the City from the Commission’s issuance of the permit
to AIRW too attenuated.
Even if the Commission were to address each of the City’s points of error on
remand (the City’s denial of service, costs to the developer, the alleged application
deficiencies, and water quality concerns), the City would be in the same position as
it is today – without authority to provide service to the AIRW development and
having suffered no harm or prejudice to its substantial rights. Because the City has
8 suffered no harm, injury, or prejudice to any substantial rights, the District Court’s
decision was in error. This Court should reverse and affirm the Commission’s
issuance of the permit to AIRW.
II. The City’s misinterpretation of the requirements for permit issuance is not a basis for reversible error.
The first five sections of the City’s appellate argument (A-E) focus on different
aspects of Texas’ Regionalization Policy and how the Commission applied the policy
to AIRW’s application. The City misinterprets the policy in two key ways. First, the
City would have the court believe that Texas’ Regionalization Policy creates a
mandatory duty for the agency to deny a permit in certain circumstances. Second,
the City’ perceives the Policy to create a right for the City to serve the area if it meets
certain criteria. Neither of these premises are correct. Additionally, under Texas’
Regionalization Policy and its associated guidance, diminution of property values is
a valid cost factor. Finally, AIRW’s actions were sufficient to constitute denial of
service.
The remaining arguments under Sections F-K either skirt a key jurisdictional
issue or ask the court to re-weigh evidence. Section F merely skims the concept of
consent. In Sections G-K, the City asks the Court to re-weigh evidence regarding the
Commission’s water quality, antidegradation, nuisance odors, human health, and
9 application completeness determination. These are all issues the District Court
disposed of in its final order. Jonah concurs with the TCEQ’s brief and reply brief
addressing the City’s arguments regarding water quality, antidegradation, nuisance
odors, human health, completeness of the application, and incorporates those
arguments by reference. This reply brief addresses the two issues not disposed of by
the District Court and the relevant overarching jurisdictional issue.
A. Diminution of Property Value is a valid cost factor.
Unhappy with the Commission’s decision, the City argues that the
Commission’s exercise of its legislatively granted discretion was unreasonable or
abused. The City takes the position that it was unreasonable for the Commission to
consider diminution of value as justification for issuance of the permit instead of
denial. Georgetown Br. at 12. The City also acknowledges “the statute does not limit
the Commission’s discretion to consider the cost impacts of the City’s annexation
requirements and development regulations,” but posits that guidance and broader
statutory requirement do. Georgetown Br. at 29. The City is wrong. TCEQ guidance
specifically requires the applicant to analyze feasibility of regionalization and allows
exceptions upon the:
ratio of the costs of regionalization compared to the projected value of the development at buildout; affordability of the rates; and
10 financial, managerial, and technical capabilities of the existing system. 2 AR 99-AIRW-EX.29 at AIRW000402. Permit applicants qualify for this exception,
even if they meet only one of these factors. Id. AIRW’s calculation of the diminished
value of the property at full buildout is a specific factor in the exception analysis,
and thus, is a proper cost factor. The Commission’s guidance reflects the agency’s
broad discretion to consider cost and other relevant factors, a point the City
repeatedly concedes, but then disputes. Georgetown Br. at 10, 26, 29. Here, the
guidance is clear: projected value of the development is a cost factor. 2 AR 99-
AIRW-EX.29 at AIRW000402. Therefore, the Commission’s findings that,
“Because of the higher property tax rate inside the City than outside it in the
unincorporated area and the City’s condition of annexation to connect to its system,
connecting carries with it an approximately $20 million cost due to diminution of
property value” and “Costs weigh in favor of granting AIRW’s application” are
consistent with Texas’ Regionalization Policy, the Commission’s rules, and its
guidance. 1 AR 66 at 11 FOF 46.
B. AIRW’s actions constitute denial of service.
Georgetown and the District Court’s overly restrictive view of the
Commission’s authority is incongruent with the Legislature’s grant of broad
discretion regarding implementation of Texas’ Regionalization Policy. Neither the
11 Policy, codified in the Water Code, nor the Commission’s guidance require formal
denial from a nearby system before a wastewater permit may be issued that is
consistent with regionalization. The Regionalization Policy is silent regarding what
constitutes denial of service from a nearby system. The Commission’s guidance
requires only that the applicant either request service from the nearby system or
demonstrate that regionalization is not feasible through one of the available
exceptions. 2 AR 99 at 21. If the nearby system rejected the request, the
Commission’s guidance requires the applicant submit copies of the application and
all correspondence from the existing system. 2 AR 99 at 21. AIRW followed this
process by submitting multiple emails and its staff’s unambiguous responses. For
example, AIRW provides a copy of the City Plan Review Comments that state
unequivocally, “UDC Sec 13.05 – The City may only provide ww services to
property in the city limits. Please update or submit a request for voluntary
annexation.” 2 AR 104. AIRW also provides numerous emails between the City
staff, including the Assistant City Manager, and AIRW’s team, wherein the City
makes it clear that annexation is absolutely required for wastewater service from the
City. 2 AR 100, 101, 102, and 103. The Assistant City Manager’s February 10, 2020,
email exemplifies the City’s firm position, stating:
I understand that you prefer to not connect to the City’s public wastewater system. Both in our meeting and in Sofia’s e-mail communication with you, we have been clear that should you desire or
12 need to connect to the City’s wastewater system you would have annex [submit a petition for voluntary annexation per City's UDC]; Sofia provided you with the pertinent UDC provisions that speak to this. Also, Sofia confirmed that we do not support a delayed annexation approach. Because you do not want to annex, you can develop in the ETJ with a private water treatment facility. Id.
Texas’ Regionalization Policy does not require a developer to agree to an
annexation to get service from a nearby system, nor does it require a developer to
receive a formal denial of service. Based on the Commission’s guidance and the
totality of the correspondence, the Commission properly and reasonably exercised
its discretion, finding “[t]he City denied AIRW’s request for service unless AIRW
agreed to annexation and land use restrictions.” 1 AR 66 at 11 FOF 42. “Under the
APA, a court reviewing an agency’s decision in a contested case ‘may not substitute
its judgment for the judgment of the state agency on the weight of the evidence on
questions committed to agency discretion.’” Save Our Springs All., Inc. v. Texas
Comm’n on Env't Quality, 713 S.W.3d 308, 320 (Tex. 2025), reh’g denied (June 20,
2025) (quoting Tex. Gov’t Code § 2001.174).
C. The State’s Regionalization Policy does not create a mandatory duty for TCEQ to deny the permit to AIRW.
Texas Water Code § 26.0282 gives TCEQ the authority to deny or alter the
terms and conditions of a proposed permit. Tex. Water Code § 26.0282. This
authority is permissive, not mandatory. The statute does not require TCEQ to deny
13 or alter the permit, nor does it require applicants to use a regional system when an
exception applies, like in this case. Texas’ Regionalization Policy is to encourage
and promote regionalization. Tex. Water Code § 26.003. The City admits that “[t]he
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.” Georgetown Br at 15. The permissive language of the
Regionalization Policy and the TCEQ’s broad discretion in its application, coupled
with the exceptions included in agency guidance, remove any potential that the
TCEQ should have denied the permit to AIRW.
D. The State’s Regionalization Policy does not equate to a legal right for the City to serve the AIRW development.
The City argues that its system was available and criticizes AIRW’s position
regarding this availability. Georgetown Br at 14. Physical availability does not
equate to legal availability or the legal authority to serve. Absent Jonah’s Consent,
the City’s system is not available because the City is not legally able to provide
wastewater service to the AIRW development under TWC § 13.244(c).
TWC § 26.081 requires TCEQ to implement a policy to “encourage and
promote” the development of regional area wide waste collection. The State’s
Regionalization Policy does not require TCEQ to force entities to always use a
regional system. The discussion above demonstrates how exceptions would relieve
14 an applicant from use of a regional system. 2 AR 99-AIRW-EX.29 at AIRW000402.
Although the City would prefer that the statute be interpreted to mean that the TCEQ
must deny the permit to AIRW if TCEQ found any reason why the City could provide
service, this is not what the policy requires. The Commission is charged with
analyzing more than just the physical availability of service. Availability of service
includes whether the City has the authority to provide service in accordance with
other applicable statutes. In this case, the Commission found that, “The proposed
Facility and its discharge are partially within Jonah’s district boundaries and wholly
within Jonah’s water CCN area” and “The City did not request Jonah’s consent to
provide wastewater service to the Facility, and Jonah has not given consent for the
City to operate within its boundaries.” 1 AR 66 at 11 FOF 51 and 52.
E. Lack of Consent from Jonah is a bar to the City becoming the service provider for the AIRW development.
The City is displeased with the result of the Commission’s exercise of its
broad discretion in application of the state’s regionalization policy, state law, and
commission rules. The sobering fact is that this means the City will not be the
wastewater provider for the AIRW development. Even if the Commission had found
that the City had not denied service, had improperly chosen to ignore the costs
associated with diminution of property value, and had required the City to address
certain aspects of the application differently, the Commission could still have issued
15 the permit to AIRW and would have been barred from authorizing the City to provide
service to the AIRW development. This is due to the City’s failure to overcome an
indispensable legal requirement for it to become the wastewater service provider:
consent from Jonah.
1. Consent is an independent legal requirement under Texas Water Code § 13.244(c).
The City buries within its forty-plus page brief, a less than one page and nearly
nonexistent argument regarding consent. The City simply did not seek or receive
Jonah’s consent to provide wastewater service within Jonah’s District boundaries.
The City tries to skirt the issue by arguing that consent is not a procedural
requirement under the Regionalization analysis. Georgetown’s Br. at 29-30. The City
is correct that consent is not part of the analysis under TWC §§ 26.003 and 26.0282.
However, it is a condition precedent to providing service within Jonah’s district
boundaries. Texas Water Code Section 13.244(c) requires:
Each applicant for a certificate or for an amendment shall file with the utility commission evidence required by the utility commission to show that the applicant has received the required consent, franchise, or permit of the proper municipality or other public authority. Tex. Water Code § 13.244(c).
The City has not sought a CCN to serve the AIRW development and
did not seek Jonah’s consent to provide service in this area. 1 AR 66 at 11 FOF
52.
16 2. It is irrelevant whether Jonah has a wastewater CCN or facilities available to serve the AIRW development.
The City is so focused on its regionalization argument that it loses sight of the
broader statutory limitations that affect service to the AIRW development. The City
attempts to brush aside the issue of consent, arguing that Jonah does not provide
wastewater services and does not have a wastewater CCN. Georgetown’s Br. at 29-
30. It matters not whether Jonah has a wastewater CCN, nor whether Jonah has
facilities available to provide wastewater services. The only relevant inquiry is
whether Jonah has granted consent to allow the City to provide wastewater services
within its District boundaries pursuant to TWC § 13.244(c). As explained in Jonah’s
Brief, both the statute and Commission rules require the City to secure Jonah’s
consent to provide service within Jonah’s District boundaries. Br at 32. TWC §
13.244(c) confers on Jonah the authority and discretion to control who provides
water and wastewater service within the District’s boundaries by granting or denying
consent to any prospective service provider. This includes the City. The requirement
for consent is not dependent on whether Jonah has a CCN or provides wastewater
services. Without Jonah’s consent, the benefit the City seeks, becoming the
wastewater service provider, is unattainable. For this reason, reversal and remand
would serve no purpose.
17 3. The location of the AIRW development imposes additional requirements that include seeking Jonah’s consent if the City desires to be the service provider.
The City falsely claims that the location of the Development does not affect
the City’s ability to serve the AIRW development with wastewater services.
Georgetown’s Br. at 29-30. Nothing could be further from the truth. As explained
above, the City’s authority is limited within the ETJ. If the AIRW development were
within the City’s corporate limits, the City could unquestionably provide service
without seeking a CCN. Municipalities have exclusive original jurisdiction to
provide water and wastewater service within their corporate boundaries without a
CCN. Tex. Water Code § 13.042. However, except in limited circumstances, a
municipality cannot provide retail water or wastewater services outside of its
corporate boundaries without a CCN. Tex. Water Code §§13.242(c) and 13.243. The
record reflects that this property is not within Georgetown’s corporate limits, but is
within Jonah’s District boundaries. 1 AR 66 at 10-11 FOF 34, 51. Thus, to provide
service, the City must be granted a CCN. To get the CCN, Texas Water Code Section
13.244(c) requires “that the applicant has received the required consent, franchise,
or permit of the proper municipality or other public authority.” Tex. Water Code §
13.244(c). Jonah is the “other public authority” from which the City must receive
consent. The City does not address its failure to secure this consent. Lacking consent,
18 the City is not legally able to serve the AIRW development and service is not
available from the City.
CONCLUSION AND PRAYER
Evidence in the record demonstrates that the Commission acted reasonably
and within its authority and discretion in granting AIRW the TPDES Permit.
Substantial evidence demonstrates that the Permit complies with all applicable
statutory and regulatory requirements and with Texas’ Regionalization Policy. None
of the City’s substantial rights were violated, and thus, the District Court erred in
reversing the Commission’s order. For these reasons, Jonah respectfully prays that
the Court reverse the District Court’s judgment and render judgment affirming the
Commission’s Order in all respects. Jonah further prays the Court grant Jonah all
further relief to which it may be entitled.
Respectfully submitted,
Erin R. Selvera
John J. Carlton State Bar No. 03817600 john@carltonlawaustin.com
Kelli A. N. Carlton State Bar No. 15091175 kelli@carltonlawaustin.com
19 Erin R. Selvera State Bar No. 24043385 erin@carltonlawaustin.com
THE CARLTON LAW FIRM, P.L.L.C. 4301 Westbank Drive, Suite B-130 Austin, Texas 78746 Telephone: (512) 614-0901 Facsimile: (512) 900-2855 ATTORNEYS FOR JONAH WATER SPECIAL UTILITY DISTRICT
20 CERTIFICATE OF COMPLIANCE
I certify that the Brief of Appellant, Jonah Water Special Utility District contains 4,415 words and therefore complies with the word limit found in Tex. R. App. P. 9.4(i)(2)(B).
_________________________ Erin R. Selvera
21 CERTIFICATE OF SERVICE
I certify that the Brief of Appellant, Jonah Water Special Utility District was electronically filed with the Clerk of the Court using the electronic case filing system of the Court, and that a true and correct copy was served upon counsel for each party of record, listed below, by electronic service or email on September 19, 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
Plaintiff-Appellee City of Georgetown, Texas: William A. Faulk, III cfaulk@spencerfane.com Carlota Hopinks-Baul chbaul@spencerfane.com Maris M. Chambers mchambers@spencerfane.com SPENCER FANE, LLP 816 Congress Avenue, Suite 1200 Austin, Texas 78701 Telephone: 512-840-4550 Fax: 512-840-4551
Patricia Erlinger Carls tcarls@tcarlslaw.com LAW OFFICES OF PATRICIA ERLINGER CARLS
22 3100 Glenview Ave. Austin, Texas 78703-1443
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
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
_________________________ Erin R. Selvera
23 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Katy Hennings on behalf of John Joseph Carlton Bar No. 3817600 katy@carltonlawaustin.com Envelope ID: 105857011 Filing Code Description: Brief Requesting Oral Argument Filing Description: Brief Requesting Oral Argument Status as of 9/19/2025 4:37 PM CST
Associated Case Party: City of Georgetown
Name BarNumber Email TimestampSubmitted Status
Patricia Carls 3813425 tcarls@tcarlslaw.com 9/19/2025 4:31:28 PM SENT
Carlota Hopinks-Baul 24094039 chbaul@spencerfane.com 9/19/2025 4:31:28 PM SENT
Skye Masson Skye.Masson@georgetowntexas.gov 9/19/2025 4:31:28 PM SENT
Kelsey Parker kparker@spencerfane.com 9/19/2025 4:31:28 PM SENT
Maris Chambers MChambers@spencerfane.com 9/19/2025 4:31:28 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
William Thompson 24088531 will@lkcfirm.com 9/19/2025 4:31:28 PM SENT
Edmond McCarthy 13367200 ed@ermlawfirm.com 9/19/2025 4:31:28 PM SENT
William Faulk 24075674 cfaulk@spencerfane.com 9/19/2025 4:31:28 PM SENT
John Carlton 3817600 john@carltonlawaustin.com 9/19/2025 4:31:28 PM SENT
Michael Parsons 24079109 michael@carltonlawaustin.com 9/19/2025 4:31:28 PM SENT
Helen Gilbert 786263 hgilbert@bartonbensonjones.com 9/19/2025 4:31:28 PM SENT
Colton Halter colton.halter@oag.texas.gov 9/19/2025 4:31:28 PM SENT
Todd Disher todd@lkcfirm.com 9/19/2025 4:31:28 PM SENT
Kelli Carlton kelli@carltonlawfirm.com 9/19/2025 4:31:28 PM ERROR
Erin Selvera erin@carltonlawfirm.com 9/19/2025 4:31:28 PM ERROR
Associated Case Party: Texas Commission on Environmental Quality
Name BarNumber Email TimestampSubmitted Status Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Katy Hennings on behalf of John Joseph Carlton Bar No. 3817600 katy@carltonlawaustin.com Envelope ID: 105857011 Filing Code Description: Brief Requesting Oral Argument Filing Description: Brief Requesting Oral Argument Status as of 9/19/2025 4:37 PM CST
Associated Case Party: Texas Commission on Environmental Quality
Name BarNumber Email TimestampSubmitted Status
Kellie E.Billings-Ray Kellie.Billings-Ray@oag.texas.gov 9/19/2025 4:31:28 PM SENT
Erin K.Snody Erin.Snody@oag.texas.gov 9/19/2025 4:31:28 PM ERROR
Sara Ferris sara.ferris@oag.texas.gov 9/19/2025 4:31:28 PM SENT
Jennifer Jamison jennifer.jamison@tceq.texas.gov 9/19/2025 4:31:28 PM ERROR
Bobby Salehi bobby.salehi@tceq.texas.gov 9/19/2025 4:31:28 PM ERROR
Evan Greene evan.greene@oag.texas.gov 9/19/2025 4:31:28 PM SENT
Associated Case Party: AIRW 2017-7, LP
Name BarNumber Email TimestampSubmitted Status
Andrew Davis andrew@lkcfirm.com 9/19/2025 4:31:28 PM SENT
Associated Case Party: AIRW 2017-7, L.P.
Name BarNumber Email TimestampSubmitted Status
Yahaira De Lara ydelara@bartonbensonjones.com 9/19/2025 4:31:28 PM SENT
Michael Cotton michael@lkcfirm.com 9/19/2025 4:31:28 PM ERROR
Associated Case Party: Jonah Water Special Utility District
Name BarNumber Email TimestampSubmitted Status
John Carlton john@carltonlawfirm.com 9/19/2025 4:31:28 PM ERROR