Dos Republicas Coal Partnership v. David Saucedo, as Floodplain Administrator and County Judge of the Maverick County Commissioners Court, and the Maverick County Commissioners Court

Opinion

ACCEPTED 13-14-00725-cv THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/23/2015 9:14:46 AM CECILE FOY GSANGER CLERK

No. 13-14-00725-CV ______________________________________________________ FILED IN 13th COURT OF APPEALS Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS

for the Thirteenth Judicial District 7/23/2015 9:14:46 AM CECILE FOY GSANGER Corpus Christi – Edinburg, Texas Clerk ______________________________________________________

Dos Republicas Coal Partnership, Appellant, v. David Saucedo as Floodplain Administrator and County Judge of the Maverick County Commissioners Court and the Maverick County Commissioners Court, Appellees. ______________________________________________________

REPLY BRIEF OF APPELLANT ______________________________________________________

On appeal from the 293rd Judicial District Court Maverick County, Texas Cause Number 14-03-29340-MCV ______________________________________________________

Leonard Dougal Bill Cobb State Bar No. 06031400 State Bar No. 00796372 Mallory Beck Matthew Ploeger State Bar No. 24073899 State Bar No. 24032838 JACKSON WALKER L.L.P. Jenny L. Smith 100 Congress State Bar No. 24079357 Suite 1100 COBB & COUNSEL Austin, Texas 78701 401 Congress Avenue ldougal@jw.com Suite 1540 T: (512) 236-2233 Austin, Texas 78701 F: (512) 391-2112 bill@cobbxcounsel.com (512) 693-7570 (512) 687-3432 – Facsimile

Attorneys for Appellant Dos Republicas Coal Partnership TABLE OF CONTENTS

Table of Contents ................................................................................................... ii Index of Authorities .............................................................................................. iv Introduction .............................................................................................................1 Argument .................................................................................................................3 I. Appellees’ over-expansive view of the Ordinance’s purpose does not alter the conditions for granting a permit. ................................3 A. Appellees’ interpretation of the Ordinance, which confers standardless discretion on the Floodplain Administrator, would render the Ordinance unconstitutionally vague. ..............4 B. The Ordinance’s statement of purpose does not authorize the Floodplain Administrator to regulate surface coal mining or water quality, which are both regulated exclusively by state agencies. ...........................................................9 1. Surface coal mining is regulated exclusively by the Railroad Commission. .............................................................9 2. The Ordinance does not and cannot regulate flood water quality or contaminants. ............................................12 II. As a matter of law, DRCP’s Permit Application satisfied the conditions to receive a permit. ..................................................................17 A. Appellees’ assertions with respect to Padilla’s testimony are based on misconceptions about what a permit application must show.....................................................................20 1. DRCP was not required to eliminate pre-existing dangers from flooding. ..........................................................21 2. The Ordinance does not address water quality or “contaminants.” ......................................................................25 B. Appellees waived factor (d), the compatibility of the proposed use with existing and anticipated development. .......26 III. The duty to grant the permit is not discretionary where, as here, the Ordinance’s conditions are met. ........................................................29

ii IV. The Floodplain Administrator’s failure to provide any written explanation of his decision evidences an abuse of discretion and is arbitrary and capricious. ........................................................................31 A. The requirement of a written explanation is inherent in the concept of judicial review. ........................................................31 B. There is no evidence of any [climate] changed circumstances that justify the disparate treatment of the 1998 and 2013 permit applications.................................................33 V. Appellees’ novel contention that the Floodplain Administrator’s due process violation was “remedied” by instituting an action for an extraordinary writ is without merit. ........35 Prayer ......................................................................................................................36 Certificate of Compliance ....................................................................................38 Certificate of Service .............................................................................................38

iii INDEX OF AUTHORITIES

CASES Bradley v. State ex rel. White, 990 S.W.2d 245 (Tex. 1999) ...................... 6, 29, 30

City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (Tex. App.— Dallas 1992, writ denied) .................................................................................34

City of Dallas v. TCI W. End, Inc., No. 13-0795, 2015 WL 2147986 (Tex. May 8, 2015) ......................................................................................................................5

City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (Tex. App.—Austin 1993, writ denied) ........................................................................................................32

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)...........................................18

City of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597 (Tex. App.—San Antonio 2013, pet. denied) ................................... 11, 12, 17

City of W. Lake Hills v. Westwood Legal Def. Fund, 598 S.W.2d 681 (Tex. Civ. App.—Waco 1980, no writ) .............................................................................14

Coffee City v. Thompson, 535 S.W.2d 758 (Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) ............................................................................................................7

Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993).............................................................................................. 11, 12, 17

Hager v. Romines, 913 S.W.2d 733 (Tex. App.—Fort Worth 1995, no writ) ...18

Jackson v. Neal, No. 13-07-00164-CV, 2009 WL 140507 (Tex. App.—Corpus Christi-Edinburg Jan. 22, 2009, no pet.) .........................................................27

Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014)...................................6

Lee v. GST Transp. Sys., LP, 334 S.W.3d 16 (Tex. App.—Dallas 2008, pet. denied) ..................................................................................................................6 iv Lindig v. City of Johnson City, No. 03-11-00660-CV, 2012 WL 5834855 (Tex. App.—Austin Nov. 14, 2012, no pet.) ..............................................................7

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006)....................................18

Mack v. Moore, 669 S.W.2d 415 (Tex. App.—Houston [1st Dist.] 1984, no writ) .....................................................................................................................18

Methodist Hosps. of Dallas v. Mid–Century Ins. Co. of Tex., 259 S.W.3d 358 (Tex. App.—Dallas 2008, no pet.) .....................................................................6

Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2013).......................................................27

Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (Tex. App.—Amarillo 2014, no pet.) ..................................................................................................7, 29

Perry v. S.N., 973 S.W.2d 301 (Tex. 1998) ...........................................................33

R.R. Comm’n of Texas v. Coppock, 215 S.W.3d 559 (Tex. App.—Austin 2007, pet. denied).........................................................................................................10

Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (Tex. 2013) ................................................................................................................. 10, 12, 17

Starr County v. Starr Industrial Services, Inc., 584 S.W.2d 352 (Tex. App.— Austin 1979, writ ref’d n.r.e.).................................................................... 27, 28

Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554 S.W.2d 924 (Tex. 1977) ........................................................................................................... 6, 8, 29

Texas Health Facilities Commission v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (Tex. 1984)....................................................................................................32

Walker v. Hitchcock Indep. Sch. Dist., No. 01-11-00797-CV, 2013 WL 3771302 (Tex. App.—Houston [1st Dist.] July 16, 2013, no pet.)...............................34

v STATUTES TEX. NAT. RES. CODE § 134.002 ...............................................................................9

TEX. NAT. RES. CODE § 134.020 .............................................................................10

TEX. WATER CODE § 16.312 ....................................................................................16

TEX. WATER CODE § 16.3145 ..................................................................................16

TEX. WATER CODE § 26.011 ....................................................................................13

TEX. WATER CODE § 26.023 ....................................................................................13

TEX. WATER CODE § 26.171 ....................................................................................14

TEX. WATER CODE § 26.172 ....................................................................................14

TEX. WATER CODE § 26.176 ....................................................................................14

TEX. WATER CODE § 26.180 ....................................................................................14

OTHER AUTHORITIES National Flood Insurance Program: Program Description, Fed. Emer. Mgmt. Agency, at 5 (Aug. 1, 2002), available at http://www.fema.gov/media-library-data/20130726-1447-20490- 2156/nfipdescrip_1_.pdf. .................................................................................23

Texas Nonpoint Source Management Program, TCEQ/TSSWCB joint publication SFR-68/04, at 93 (2005)................................................................22

RULES TEX. R. APP. P. 33.1 .................................................................................................26

TEX. R. APP. P. 43.2 .................................................................................................36

TEX. R. EVID. 801 .....................................................................................................34

vi TO THE HONORABLE COURT OF APPEALS: Appellant Dos Republicas Coal Partnership (“DRCP”) respectfully

submits this Reply Brief.

INTRODUCTION

To understand why the Floodplain Administrator’s denial of DRCP’s

permit application was improper, the Court need only review the testimony

of the Floodplain Administrator. Judge Saucedo testified, repeatedly, that

he would never grant a permit allowing mining in the floodplain, and there

was nothing DRCP could do (or demonstrate) that would change his mind.

Burdened with this testimony, Appellees contort the purpose and structure

of the Ordinance to justify his foreordained rejection.

Appellees’ arguments rest on the mistaken assertion that the

Floodplain Administrator is not constrained by the Ordinance’s ten

mandatory factors for evaluating permit applications. Although the

Floodplain Administrator testified that the permit application must be

measured against the ten enumerated factors, Appellees only now assert that

the Ordinance’s general statement of purpose, separate and apart from the

operative provisions of the Ordinance, gives the Floodplain Administrator

broad power to reject otherwise satisfactory permit applications based on his

1 judgment as to the “best interests of the county.” But the Ordinance’s

general statement of purpose simply does not (and cannot) give the

Floodplain Administrator a general police power beyond the limits of the

operative provisions of the Ordinance itself. This is especially true where,

as here, he does so with no explanation or evidence to support his diktat.

Appellees’ interpretation of the Ordinance would give the Floodplain

Administrator boundless, limitless, and standardless discretion to veto

projects that he disfavors, untethered from the express conditions for issuing

permits that are imposed by the Ordinance. Indeed, Appellees’ erroneous

interpretation would render the Ordinance unconstitutionally vague and

subject to arbitrary and capricious enforcement. It therefore must be

rejected.

Further, Appellees’ interpretation and corresponding arrogation of

power would render the Ordinance preempted by state law and regulations,

which exclusively regulate both surface coal mining and the discharge of

water from mining operations. It is undisputed that DRCP has received all

relevant permits from all relevant state agencies for its surface coal mining

operations, but Appellees wish to second-guess and override the authority

2 of these regulatory agencies because they disagree with the expert decisions

those agencies have made.

Appellees’ attempts to shoehorn his assumption of veto power into the

ten enumerated factors themselves fairs no better. Appellees labor under a

misconception of what the Ordinance requires of applicants. Contrary to

Appellees’ assumptions, permit applicants are not required to demonstrate

that the proposed use will prevent flooding. At most, the application should

demonstrate that the proposed use will not excessively increase the dangers

of flooding. The Ordinance recognizes that flooding will occur regardless of

the measures taken by the government or by private landowners. Here, the

uncontroverted evidence is that Appellant’s mining activities will not

increase the dangers of flooding, but in fact, that they will actually reduce

the risks. Thus, Appellant’s permit application demonstrates prevention

efforts far beyond what the Ordinance requires.

ARGUMENT

I. Appellees’ over-expansive view of the Ordinance’s purpose does not alter the conditions for granting a permit.

Appellees’ brief is based on the faulty premise that the Floodplain

Administrator may alter the conditions for granting or denying a permit

3 based on his over-expansive understanding of the purpose of the Ordinance.

Appellees rely upon article 4, section C(2) of the Ordinance, which provides:

“Approval or denial of a Development Permit by the Floodplain

Administrator shall be based on all of the provisions of this ordinance and

the following relevant factors.” 1 RR, Exhibit 5, Article 4, Section C(2) [Tab

3]. Appellees’ assertion that the admonition to consider “all provisions”

gives the Floodplain Administrator unfettered, standardless discretion is

beyond farcical: this interpretation would render the Ordinance

unconstitutionally vague and invalid. Further, this interpretation (and the

Floodplain Administrator’s application of it here) conflicts with the

exclusive authority granted to the RRC and TCEQ by state law and, thus, is

preempted.

A. Appellees’ interpretation of the Ordinance, which confers standardless discretion on the Floodplain Administrator, would render the Ordinance unconstitutionally vague.

The model ordinance adopted by Maverick County provides ten

specific factors against which a permit application must be judged. It is

through an even-handed application of these standards that the policy goals

behind the Ordinance are achieved. That is, the policy goals are mediated

by and through the ten expressly enumerated factors. But the policy goals 4 themselves do not create an additional, ill-defined, omnibus factor that the

Floodplain Administrator may consider, which would make the express

factors immaterial and superfluous. City of Dallas v. TCI W. End, Inc., No. 13-

0795, 2015 WL 2147986, at *2 (Tex. May 8, 2015) (“We must avoid adopting

an interpretation that “renders any part of the statute meaningless.’”)

(quoting Crosstex Energy Servs, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.

2014)). If Appellees were correct, then there would be no need for any statute

or ordinance to provide requirements and factors; the statute or ordinance

could simply state some general policy goals and administrators could then

decide how best to accomplish those goals. But that, of course, is not how

the rule of law works.

Appellees’ assertion is truly remarkable. They maintain that an

administrator may ignore the operative standards enumerated in the

ordinance in favor of their own interpretation of the ordinance’s “purpose”

untethered to the actual requirements and factors mandated in the

ordinance. To the contrary, the Ordinance’s purpose is mediated through

its operative provisions; it does not add to them. And “[e]ven if we liberally

construe a statute to achieve its purposes, we may not enlarge or alter the

plain meaning of its language.” Lee v. GST Transp. Sys., LP, 334 S.W.3d 16, 5 20 (Tex. App.—Dallas 2008, pet. denied); Methodist Hosps. of Dallas v. Mid–

Century Ins. Co. of Tex., 259 S.W.3d 358, 360-61 (Tex. App.—Dallas 2008, no

pet.). Nor will a court “ignore the words’ common meanings to achieve a

purpose or object that is ambiguous at best.” Jaster v. Comet II Constr., Inc.,

438 S.W.3d 556, 569 (Tex. 2014).

By asserting that the Floodplain Administrator may rely on the general

statement of purpose of the Ordinance to deny a permit, Appellees are

asserting that the Floodplain Administrator’s discretion is not limited to the

standards set forth in the operative provisions of the Ordinance, but, rather,

on unspecified and unknowable factors of the Floodplain Administrator’s

choosing. As the Texas Supreme Court has explained, this sort of

standardless discretion “leav[es] a situation ripe for ‘resolution on an ad hoc

and subjective basis, with the attendant dangers of arbitrary and

discriminatory application.’” Bradley v. State ex rel. White, 990 S.W.2d 245,

253 (Tex. 1999) (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972));

Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554 S.W.2d 924, 928 (Tex.

1977) (“A vague law impermissibly delegates basic policy matters to

policemen, judges, and juries for resolution on ad hoc and subjective basis,

with the attended [sic] dangers of arbitrary and discriminatory 6 applications.” (quoting Grayned, 408 U.S. at 109); Pak-a-Sak, Inc. v. City of

Perryton, 451 S.W.3d 133, 137 (Tex. App.—Amarillo 2014, no pet.) (“That is,

[an ordinance] may not be so vague and standardless as to leave a governing

body free to decide, without any legally fixed guidelines, what is prohibited

in each particular case.”); Lindig v. City of Johnson City, No. 03-11-00660-CV,

2012 WL 5834855, at *5 (Tex. App.—Austin Nov. 14, 2012, no pet.) (mem. op.)

(“[T]he seemingly boundless discretion vested in the Building Official to

interpret and apply the term [‘substantial work’] invites arbitrary and

discriminatory application.”); Coffee City v. Thompson, 535 S.W.2d 758, 763

(Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) (“An ordinance leaving the

question of issuing or denying building permits to the arbitrary discretion

or determination of the city secretary without any rule or standard to follow

is invalid.”).

Here, the Floodplain Administrator repeatedly testified there was

nothing DRCP could do to satisfy him and convince him to grant a permit.

1 RR, Exhibit 9 at 28:12-14, 29:21-25, 39:10-14. He testified unequivocally that

he would never approve its application for mining operations in the

floodplain regardless of what the permit application established. He further

testified that he based this position on his personal experience and his 7 determination as to what was in the best interests of the county. But the

Ordinance does not empower him to ignore the standards expressly

enumerated in the operative provisions of the Ordinance.

In sum, the statement of purpose does not give the Floodplain

Administrator license to override the applicable language of those operative

provisions or the enabling statute. It cannot add to the requirements for

obtaining a permit. Otherwise, the operative provisions of the Ordinance

are meaningless because the statement of purpose gives the Floodplain

Administrator the power to deny or grant permits without respect to the

express, enumerated factors. The purpose of the Ordinance is served by the

express factors mandated in the Ordinance; the statement of purpose does

not give rise to supernumerary and superordinate power to deny permits

the Floodplain Administrator deems not in the county’s best interests. As

the Texas Supreme Court has explained, “[w]e adhere to the settled principle

that statutory delegations of power may not be accomplished by language

so broad and vague that persons ‘of common intelligence must necessarily

guess at its meaning and differ as to its application.’” Texas Antiquities

Comm. v. Dallas Cnty. Cmty. Coll. Dist., 554 S.W.2d 924, 928 (Tex. 1977)

(quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926)). 8 B. The Ordinance’s statement of purpose does not authorize the Floodplain Administrator to regulate surface coal mining or water quality, which are both regulated exclusively by state agencies.

Even if Appellees’ arrogation of a general police power could be

countenanced, their interpretation and application of the Ordinance would

render it preempted by state statutes and regulations of surface coal mining

and water quality. Here, the Floodplain Administrator’s purported bases

for denying the permit are preempted by state statutes and regulations.

1. Surface coal mining is regulated exclusively by the Railroad Commission.

The Floodplain Administrator testified that he would never approve a

permit for mining operations in the floodplain based on his “personal

experiences” and determination that mining in the floodplain is not in the

“best interests of the county.” But the Texas Natural Resources Code grants

the Railroad Commission exclusive jurisdiction to regulate the operation

and location of surface coal mines. TEX. NAT. RES. CODE § 134.002(5) (“[T]his

state wishes to assume exclusive jurisdiction over the regulation of surface

coal mining and reclamation operations in the state under the federal Act.”);

R.R. Comm’n of Texas v. Coppock, 215 S.W.3d 559, 570 (Tex. App.—Austin

9 2007, pet. denied). 1 Indeed, the code contains a procedure by which the RRC

may designate an area, including a floodplain, as not suitable for surface coal

mining operations. TEX. NAT. RES. CODE § 134.020(b)(4) (“On petition under

Section 134.017, the commission may designate a surface area unsuitable for

certain types of surface coal mining operations if those operations will . . .

affect natural hazard land, including areas subject to frequent flooding and

areas of unstable geology, in which the operations could substantially

endanger life and property.”). Consequently, the decision of whether a

surface coal mining operation should be prohibited in the floodplain is

clearly within the RRC’s exclusive jurisdiction, and the Floodplain

Administrator’s attempt to usurp this authority is a clear abuse of discretion.

See Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678-79

(Tex. 2013) (ordinance may not override state permit); Dallas Merchant’s &

1 “The natural resources code specifies that the Commission has been granted exclusive jurisdiction over surface coal mining and reclamation activities, has been charged with enforcing the relevant portions of the code, and has been given the authority to issue rules pertaining to mining and reclamation activities that are consistent with the code. See TEX. NAT. RES. CODE ANN. §§ 134.011 (Commission given broad powers, including power to adopt rules, issue and revoke permits, conduct hearings, issue orders requiring miners to take certain actions, and order cessation of mining activities), 134.012(a)(1) (Commission has exclusive jurisdiction), 134.013 (West 2001) (Commission required to adopt rules relating to surface coal mining and reclamation), 134.161-.181 (West 2001) (enforcement powers of Commission).” R.R. Comm’n of Texas v. Coppock, 215 S.W.3d 559, 570 (Tex. App.—Austin 2007, pet. denied).

10 Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993); City

of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597, 601 (Tex.

App.—San Antonio 2013, pet. denied) (“An ordinance that attempts to

regulate a subject matter preempted by a state statute is unenforceable to the

extent it conflicts with a state statute.”).

Nor does the Floodplain Administrator have the power to enforce RRC

regulations or second-guess the RRC’s determinations. Appellees appear to

want to disavow any suggestion that the Floodplain Administrator

considered mining regulations in denying the permit. Resp. at 27-28. Yet

this is exactly opposite of what they told the trial court below, where

Appellees argue at length that the RRC should not have issued a permit to

DRCP. 2 CR 857-66; see also Br. at 60-62. Indeed, Appellees argued that “[t]he

County Judge was doing his job in protecting this community from the

Railroad Commission.” 2 CR 879-80. But any concerns regarding purported

dangers from mining activities were addressed and satisfied during the

permitting process at the RRC, where Appellant was an active participant,

and provided testimony. Re: The Application of Dos Republicas Coal Partnership

for Renewal/Revision/Expansion of Surface Coal Mining And Reclamation Permit

No. 42A, Eagle Pass Mine, Docket No. C5-0003-SC-42-C, Testimony of Judge 11 David Saucedo, 10 Tr. 38-107, (Mar. 23, 2012). The Floodplain

Administrator’s disagreement with the RRC’s conclusions is not a legitimate

reason to deny the permit. Neither the Ordinance nor the enabling statute

give the Floodplain Administrator the authority to override the RRC. See

Southern Crushed Concrete, 398 S.W.3d at 678-79; Dallas Merchant’s, 852

S.W.2d at 490–91; City of San Antonio, 419 S.W.3d at 601. Moreover,

Appellees’ second-guessing of the RRC’s approval consists entirely of

supposition and assumptions about what might happen in a flood. 2 CR

856-67. Nowhere do Appellees cite any actual evidence to support this

speculation, nor could they. The only evidence presented to the Floodplain

Administrator or the trial court came from Paul Padilla, a licensed engineer

and hydrology expert and the only expert to testify or offer evidence in this

case. As discussed further below, Mr. Padilla testified that DRCP’s mining

plan will not detrimentally affect flood water dangers or downstream

properties. See Part II, infra.

2. The Ordinance does not and cannot regulate flood water quality or contaminants.

Appellees’ assertion that the presence of the enabling legislation for

the Ordinance within the Water Code constitutes a delegation of the power

12 to regulate water quality to the County is meritless. Resp. at 24. The Water

Code is quite clear that “[t]he commission [TCEQ] has the sole and exclusive

authority to set water quality standards for all water in the state.” TEX.

WATER CODE § 26.023; TEX. WATER CODE § 26.011 (“Except as otherwise

specifically provided, the commission shall administer the provisions of this

chapter and shall establish the level of quality to be maintained in, and shall

control the quality of, the water in this state as provided by this chapter.”).

Further, the enabling legislation does not address water quality or pollution.

Rather, commensurate with its purpose of promoting the availability of

federal flood insurance (more on this below), it is found in Subchapter I

(“Flood Insurance”) of Chapter 16 of Subtitle C (“Water Development”).

In contrast, water quality regulation is found in Subtitle D, Chapter 26,

which states clearly that “The commission [TCEQ] has the sole and exclusive

authority to set water quality standards for all water in the state.” TEX.

WATER CODE § 26.023; TEX. WATER CODE § 26.011 (“Except as otherwise

specifically provided, the commission shall administer the provisions of this

chapter and shall establish the level of quality to be maintained in, and shall

control the quality of, the water in this state as provided by this chapter.”).

Notably, subchapter E of chapter 26 describes local governments’ functions 13 related to water quality, none of which gives a county or Floodplain

Administrator the authority to regulate water quality or otherwise impede a

use that has been approved by the TCEQ. Rather, for example, local

governments are authorized to inspect public water (§ 26.171), make

recommendations to the TCEQ (§ 26.172), establish rules related to disposal

systems owned or operated by the local government (§ 26.176), and for some

cities to establish monitoring and abatement programs, which must be

approved by the TCEQ, for pollution not traceable to a specific source

(§ 26.180). TEX. WATER CODE §§ 26.171-.180; see also, e.g., City of W. Lake Hills

v. Westwood Legal Def. Fund, 598 S.W.2d 681, 686 (Tex. Civ. App.—Waco 1980,

no writ) (explaining that the functions and services listed in section 26.177

“are in the nature of ‘information gathering’”). As the court explained in

City of West Lake Hills, “[a]lthough the Legislature recognized the importance

of cooperative efforts between state and local governmental bodies, the state

is assigned responsibility for promulgating rules and regulations to control

pollution problems. . . . . The legislative scheme simply does not contemplate

independent regulatory action by a city.” City of W. Lake Hills, 598 S.W.2d at

686. Appellees can point to nothing that grants Maverick County the

authority exercised by the Floodplain Administrator here. 14 Indeed, the Ordinance itself provides no basis for Appellees’ claimed

authority to regulate water quality or pollutants. Notably, the statement of

purpose, on which Appellees rely so heavily, says nothing about flood water

quality or contaminants. Notably, the Ordinance’s findings of fact make

clear that the danger that the Ordinance is intended to address is flood water

height and velocity, not water quality or contaminants. 1 RR, Exhibit 5, Article

1, Section B(2) [Tab 3] (“These flood losses are created by the cumulative

effect of obstructions in floodplains which cause an increase in flood heights

and velocities, and by the occupancy of flood hazards areas by uses

vulnerable to floods and hazardous to other lands because they are

inadequately elevated, floodproofed or otherwise protected from flood

damage.”). Not surprisingly, then, the Ordinance’s definitions do not

include “contaminant,” “pollutant,” or any other term related to water

quality. In fact, no provision of the Ordinance relates to water quality or

even refers to (much less establishes) any water quality standard against

which a permit application must be judged. Nor is there anything that

suggests that Floodplain Administrators have the necessary expertise to

regulate water quality.

15 Further, the purpose of the enabling statute that authorizes local

governments to adopt these ordinances does not relate to water quality.

Rather, the purpose is to allow property owners to obtain flood insurance

under a federal program. TEX. WATER CODE § 16.312 (“The purpose of this

subchapter is to evidence a positive interest in securing flood insurance

coverage under this federal program and to so procure for those citizens of

Texas desiring to participate and in promoting the public interest by

providing appropriate protection against the perils of flood losses and in

encouraging sound land use by minimizing exposure of property to flood

losses.”); id. § 16.3145 (“The governing body of each city and county shall

adopt ordinances or orders, as appropriate, necessary for the city or county

to be eligible to participate in the National Flood Insurance Program.”). It

was not intended to establish a separate regulatory regime for water quality.

Nor was it intended to grant counties free license to prevent land uses they

deem unwanted.

Further, Appellees’ assertion that recognizing that the TCEQ has

exclusive authority to regulate water quality would nullify the Ordinance is

spurious. Resp. at 24-25. The Ordinance, properly interpreted, is limited to

consideration of the height and velocity of flood waters, not water quality. It 16 is only under Appellees’ erroneous interpretation of the Ordinance, which

would give the Floodplain Administrator the authority to regulate water

quality in addition the enumerated authority to regulate flood water height

and velocity, that would create a conflict with the TCEQ’s exclusive

authority. Under the proper interpretation, the Ordinance and the TCEQ

regulate different things.

Appellees’ interpretation of the Ordinance clearly exceeds the

authority granted to the County in the enabling legislation and, in any case,

is preempted by the Water Code’s delegation of that authority exclusively to

the TCEQ. See Southern Crushed Concrete, 398 S.W.3d at 678-79; Dallas

Merchant's, 852 S.W.2d at 490–91; City of San Antonio, 419 S.W.3d at 601. The

Floodplain Administrator’s exercise of this non-existent authority is a clear

abuse of discretion.

II. As a matter of law, DRCP’s Permit Application satisfied the conditions to receive a permit.

Appellees assert that the Floodplain Administrator and trial court

were not required to accept the uncontroverted testimony of Paul Padilla, a

licensed engineer and hydrology expert and the only expert to testify or offer

evidence in this case. But there is no reasonable basis for rejecting or

17 discounting Padilla’s testimony. Thus, as the only expert evidence on the

issue, which is one that necessitates expert opinion, it is conclusive on the

fact questions at issue here. In City of Keller v. Wilson, 168 S.W.3d 802 (Tex.

2005), the Texas Supreme Court recognized that flood water management

involves scientific and technical issues that require expert opinion evidence.

Id. at 829; see also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006)

(“Expert testimony is required when an issue involves matters beyond

jurors’ common understanding.”). In such situations, an expert’s

uncontroverted testimony is conclusive. City of Keller, 168 S.W.3d at 820;

Hager v. Romines, 913 S.W.2d 733, 735 (Tex. App.—Fort Worth 1995, no writ)

(“Further, if expert testimony is required on an issue, and that expert

testimony is uncontroverted, the testimony is considered conclusively

established.”); Mack v. Moore, 669 S.W.2d 415, 419 (Tex. App.—Houston [1st

Dist.] 1984, no writ) (same).

The Floodplain Administrator’s vague allusions to “personal

experience” simply are not relevant or competent evidence in evaluating

whether the Permit Application satisfies the Ordinance.2 Further, the

2 Appellees insist that the Floodplain Administrator’s deposition testimony that “he relied on his personal experiences with flooding in Maverick County” is 18 Floodplain Administrator’s “personal experience with and knowledge of

significant flooding in the area” (Resp. at 5) likewise does not address the

relevant considerations of the Ordinance. It is undisputed that there has

been and will be flooding that takes place in the floodplain. The Ordinance

expressly recognizes this, yet, as discussed below, it does not prohibit all

development in the floodplain. Nor does the Floodplain Administrator’s

“experience” related to other sedimentation ponds that have overflowed

have any bearing on the permit application. As Padilla testified,

sedimentation ponds are designed to overflow. As the Texas Supreme Court

has explained, issues related to floodwater management require expert

evidence, and Padilla’s uncontroverted expert evidence is more than

sufficient to satisfy each of the conditions set forth in the Ordinance.

competent evidence. Resp. at 29. But it is not evidence relevant to any actual factor contained in the Ordinance. Further, as discussed above, the Texas Supreme Court has held that issues related to flood water management require expert evidence. The Floodplain Administrator’s vague references to unsubstantiated personal experiences and what he’s “seen happen in the past” simply do not qualify. 1 RR, Exhibit 9, at 49:18- 23 (Q. “[W]as there any other evidence that you considered when denying the permit? A. . . . one of the major factors to me is – is what I’ve actually seen in that community, what I’ve seen happen in the past with prior flooding.”); 1 RR, Exhibit 9 at 46:14-22 (when asked what evidence he had to support his denial, the Floodplain Administrator merely responded with “what I’ve seen in the past”). 19 Despite the fact that the only factors the Floodplain Administrator

purported to contest in the trial court were factors (a)-(c), Appellees now, for

the first time, assert that the Floodplain Administrator also based his

rejection of the Permit Application on factor (d). As discussed below,

Appellees’ late attempt to assert factor (d) should be rejected as untimely

and waived. In any case, it is another futile effort by Appellees’ to shoehorn

the Floodplain Administrator’s erroneous consideration of irrelevant issues

into permissible factors.

A. Appellees’ assertions with respect to Padilla’s testimony are based on misconceptions about what a permit application must show.

With respect to factors (a)-(c), Appellees raise essentially the same two

arguments. First, Appellees assert that Padilla’s testimony must be

disregarded because he failed to consider the effect of a hypothetical back-

to-back storm as well as a purported rain event in June of 2013. Second,

Appellees assert that Padilla’s testimony must be disregarded because he

did not consider possible contaminants. Appellees’ arguments misconstrue

the Ordinance’s requirements and the record in this case.3

3 As noted above, Appellees’ lengthy argument in the trial court that the RRC and TCEQ should not have approved DRCP’s mining plan because of its purported 20 1. DRCP was not required to eliminate pre-existing dangers from flooding.

Initially, there is zero evidence in the record that Maverick County

received 17 inches of rain in 10 hours in June 2013. Br. at 36. Appellees’

frequent references to such an event are improper and must be disregarded.

But more fundamentally, Appellees’ argument assumes that DRCP

was required to prove that the proposed use would eliminate all potential

damage from any possible flood event. This is simply preposterous. The

Ordinance is not intended to mitigate all dangers from flooding, as

recognized within the Ordinance, itself. Rather, the Ordinance requires that

the proposed use not exacerbate the dangers from flooding by increasing the

height, velocity, and debris in the flood water. Texas Nonpoint Source

Management Program, TCEQ/TSSWCB joint publication SFR-68/04, at 93

(2005) (“To participate in the NFIP, a community must adopt and enforce a

effects on downstream residents is based entirely on speculation and assumptions, not any actual evidence. See, e.g., 2 CR 857-66. Throughout, Appellees rail against supposed problems with the RRC’s and TCEQ’s determinations based on nothing more than the fact that flooding happens in the floodplain and it makes them uncomfortable. Id. To be absolutely clear, there is no evidence in the record before this Court or in the proceedings before the RRC and TCEQ that downstream residents are at any greater risk due to flooding under DRCP’s proposed mining plan. Appellees’ fears and baseless speculation about purported of dangers to downstream residents simply have no evidentiary support.

21 floodplain management ordinance which prevents new development from

increasing the flood threat and protect new and existing buildings from

anticipated flood events.” (emphasis added)). Section D of the Ordinance

provides that the Ordinance may restrict or prohibit uses that “cause

excessive increases in flood heights or velocities” and to control

development that “may increase flood damage.” 1 RR, Exhibit 5, Article 1,

Section D(1), D(4) [Tab 3] (emphasis added). 4

Moreover, the Ordinance fully recognizes that “[t]he degree of flood

protection required by this ordinance is considered reasonable for

regulatory purposes and is based on scientific and engineering

considerations. On rare occasions greater floods can and will occur and

flood heights may be increased by man-made or natural causes.” 1 RR,

Exhibit 5, Article 3, Section G [Tab 3]. Further, FEMA has noted that “[t]he

1-percent-annual-chance flood,” the standard adopted for all NFIP-

complaint ordinances, “was chosen on the basis that it provides a higher

4 Although Article 1, Section D(1) of the Ordinance also recites that the ordinance restricts or prohibits uses “that are dangerous to health, safety or property in times of flood,” this description is nonetheless under the umbrella of “reducing flood losses” within the ordinance, recognizing that the ordinance is focused on reducing property loss in times of flood, and reducing—rather than eliminating—threats from flooding in the floodplain.

22 level of protection while not imposing overly stringent requirements or the

burden of excessive costs on property owners.” National Flood Insurance

Program: Program Description, Fed. Emer. Mgmt. Agency, at 5 (Aug. 1,

2002), available at http://www.fema.gov/media-library-data/20130726-

1447-20490-2156/nfipdescrip_1_.pdf. The Ordinance is not intended to, nor

could it, protect or prevent against all possible flooding events. And

applicants like DRCP are not required to show that their proposed uses will

eliminate the dangers from floods.

In any case, it is undisputed that, as Padilla testified, DRCP’s proposal

actually decreases the pre-existing risks from flooding events. Under DRCP’s

mining plan, there is a decreased risk of damage caused by flooding or

erosion due to the proposed sedimentation ponds. 1 RR, Exhibit 3, at 5 [Tab

5]; 1 RR, Exhibit 1 at ¶ 13; 1 RR 40:14-41:21. Specifically, DRCP’s Permit

Application and Mr. Padilla’s unrebutted expert testimony establish that

DRCP’s proposed mining plan will have a zero net effect on flooding in the

Elm Creek watershed outside of the mining project area. 1 RR 53:21-23.

Moreover, DRCP’s mining plan decreases the likelihood that materials will

be swept downstream because the use of sedimentation ponds contains the

flow within the channel. 1 RR, Exhibit 3, at 5 [Tab 5]; 1 RR, Exhibit 1 at ¶ 15. 23 Indeed, the sediment load leaving the mine area will be lower if DRCP

conducts its proposed mining operation with sedimentation ponds than if

DRCP does nothing at all in the floodplain. 1 RR 54:1-2. Although the

Floodplain Administrator may doubt the efficacy of such ponds because,

based on dubious and inapposite “personal experience,” they may overflow,

the ponds are, in fact, designed to overflow. 1 RR 56:9-14. The

uncontroverted expert testimony establishes that DRCP’s mining plan and

its use of sedimentation ponds would not constitute a new danger for those

living downstream; to the contrary, they would decrease the pre-existing

risks from inevitable flooding.

The Floodplain Administrator testified that he denied the permit

based, in part, on his personal experiences observing the devastation from

flooding. See, e.g., 1 RR, Exhibit 9, at 49:18-23, 46:14-22. That is simply not

the issue. As the Ordinance recognizes, there will be flooding if DRCP’s

proposed use is permitted; and there will be flooding if it is prohibited.5 The

issue is the effect, if any, of the proposed use on the velocity and height of

5 Even Judge Saucedo recognizes that flooding occurs, regardless of DRCP’s proposed mining plan. 1 RR, Exhibit 9 at 49:23-25 (discussing flooding in the past, and recognizing that DRCP is “not responsible for the flooding”).

24 flood waters. The Floodplain Administrator’s personal observations of past

flooding events simply does not address this issue.

2. The Ordinance does not address water quality or “contaminants.”

Similarly, Appellees erroneously believe that the Ordinance requires

consideration of potential contaminants. As discussed above, nothing in the

Ordinance addresses contaminants. See Part I.B.2, supra. Water quality is

regulated exclusively by the TCEQ, which has already approved DRCP’s

proposed mining operations. The Ordinance provides no basis for the

Floodplain Administrator to deny a permit based on hypothetical fears

regarding potential “contaminants.”

Moreover, although Padilla agreed that sulfur “could be” considered

a contaminant, he did not testify that the sulfur was dangerous or that the

levels involved would pose any health risk. Indeed, he also testified that dirt

is a “contaminant.” 1 RR 75:5-8. And while he testified that he would not

want to drink the water coming out of the sedimentation ponds, who would?

Neither DRCP nor any other landowner is required to ensure that the flood

water coming off of its property is potable. People do not drink flood water,

and there is no evidence that dangerous levels of any contaminant would be

25 present in flood waters leaving DRCP’s property or that there would be any

danger to drinking water. Indeed, the Floodplain Administrator merely

raised the “possibility” of contamination, but could not identify any

particular contaminants or contamination that might occur under DRCP’s

mining plan. 1 RR, Exhibit 9 at 34:10-23.

B. Appellees waived factor (d), the compatibility of the proposed use with existing and anticipated development.

Appellees have waived any argument that factor (d) was a basis for

the Floodplain Administrator’s rejection of DRCP’s permit application. In

his deposition, the Floodplain Administrator testified that his denial was

based on factors (a)-(c). 1 RR, Exhibit 9 at 46 (“Q: The floodplain permit was

denied because of the factors in 2(a), (b) and (c)? A: Yes, sir.”). Nor did

Appellees contest factor (d) in the trial court. 2 CR 874-79. Appellees’

attempt to assert factor (d) for the first time in this Court should be rejected

as untimely and waived. TEX. R. APP. P. 33.1(a)(1); Nall v. Plunkett, 404

S.W.3d 552, 555-56 (Tex. 2013) (holding issues not raised and briefed in lower

courts are waived); Jackson v. Neal, No. 13-07-00164-CV, 2009 WL 140507, at

*4 & n.3 (Tex. App.—Corpus Christi-Edinburg Jan. 22, 2009, no pet.) (mem.

op.) (“This argument, however, was not raised in the trial court and is,

26 therefore, waived.”). Try as they might, Appellees’ latest attempt fails to

transform the Floodplain Administrator’s erroneous consideration of

irrelevant factors (such as neighborhood sentiment), into permissible

categories.

In any case, Appellees’ arguments regarding factor (d) are meritless.

Appellees assert that factor (d) requires the consideration of the

compatibility of the proposed use with uses on neighboring properties and

neighborhood opposition. Appellees once again conveniently forget that

this Ordinance is about floodplain management, not the approval of a coal

mine. Nor is it a zoning ordinance. Neighborhood opposition is simply not

something that this narrow floodplain-management Ordinance is intended

to—or does in fact—cover. As in Starr County v. Starr Industrial Services, Inc.,

584 S.W.2d 352, 356 (Tex. App.—Austin 1979, writ ref’d n.r.e.), “[n]owhere

in the [Ordinance] is local opposition mentioned for consideration as a

standard to govern the [Floodplain Administrator’s] decision,” and, thus,

the Floodplain Administrator’s consideration of such local opposition, and

the “best interests of the County,” was arbitrary and capricious, and

27 constitutes an abuse of discretion. 6 Id. at 356. Nothing in the Ordinance or

any other law gives county residents located miles away from DRCP’s

property the right to veto DRCP’s approved use of its land. Those decisions

are left to the state RRC and TCEQ, both of which have approved the

proposed mining operation. 1 RR, Exhibit 7; 1 RR, Exhibit 8. Indeed, the

residents who are opposed have already fully litigated their opposition to

the RRC’s approval of the mine and its location. 1 RR, Exhibit 8 at ¶ 9

(identifying those persons and entities who obtained party status in RRC

hearing); see generally Re: The Application of Dos Republicas Coal Partnership for

Renewal/Revision/Expansion of Surface Coal Mining And Reclamation Permit No.

42A, Eagle Pass Mine, Docket No. C5-0003-SC-42-C (RRC, Surface Mining and

Reclamation Division 2012). Factor (d) simply does not give the Floodplain

Administrator the authority to override the outcome of the RRC’s decision

and the subsequent litigation.

Moreover, factor (c) already addresses the effect of the proposed use

on flood damage to other properties. 1 RR, Exhibit 5, Article 4, Section

6 In any case, the unrebutted and uncontradicted evidence in this case establishes that the proposed use would reduce the effects of flooding events on downstream properties and, thus, would be, under any reasonable meaning of the words, “in the best interests of the county.”

28 C(2)(c) [Tab 3]; 1 RR 42-43. Appellees can cite nothing that suggests that

factor (d) encompasses consideration of the compatibility of all land uses

within the county.7 It certainly cannot transform a narrow ordinance

addressing flood damage prevention into a general, county-wide

development scheme. But even if it did, “neighborhood sentiment” still

would not fall within this factor unless the meaning of “compatibility” is so

broad as to be essentially standardless and, thus, unconstitutionally vague.

Bradley, 990 S.W.2d at 253; Texas Antiquities Comm., 554 S.W.2d at 928; Pak-a-

Sak, 451 S.W.3d at 137. Neither this factor, nor indeed anything else in the

Ordinance, permits the Floodplain Administrator to deny a permit because

he deems that a mine is inconsistent with a use miles away, or allows the

Floodplain Administrator to consider his estimation of popular opposition

to the proposed use of the property.

III. The duty to grant the permit is not discretionary where, as here, the Ordinance’s conditions are met.

Appellees’ assertion that the Ordinance is discretionary by definition

is simply another manifestation of its mistaken assertion that the Ordinance

7 In fact, Padilla testified that after the seven-year life of the mining plan, the land will be restored to its original condition and “then can be used in whatever comprehensive plan the county wishes.” 1 RR 43-44.

29 invests the Floodplain Administrator with authority to evaluate permit

applications without regard to the ten factors enumerated in the Ordinance.

See Part I, supra. Indeed, this interpretation would give the Floodplain

Administrator such standardless discretion that it would create “a situation

ripe for ‘resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.’” Bradley, 990 S.W.2d

at 253 (quoting Grayned, 408 U.S. at 109)).

Properly interpreted, however, the Ordinance does not grant the

Floodplain Administrator free reign to reject otherwise compliant

applications based on his personal feelings, desires, opinions, or grandiose

notions of the best interests of the county. Once the requirements and factors

enumerated in the Ordinance are satisfied, it is the Floodplain

Administrator’s duty under the Ordinance to grant the permit. 8 Because the

unrebutted and uncontradicted evidence in this case is that the proposed use

8 Appellees’ assertion that the Floodplain Administrator had to consider all 21 pages of the Ordinance is frivolous. See Resp. at 6, 9, 22. Of the 21 pages, 3 are certification pages, 7 are definitions, 2 relate to variance procedures, 3 relate to building standards, and 4 include general provisions, findings and statement of purpose. 1 RR, Exhibit 5 [Tab 3]. Only 2.5 pages relate to the duties of the Floodplain Administrator and the requirements and factors that the Floodplain Administrator must determine have been met in order to grant the permit. Id. None of the provisions on the remaining 18.5 pages relate to the permitting procedure. Id.

30 would not increase, but actually would reduce the dangers posed by flooding

events, the Floodplain Administrator had a ministerial duty to grant the

permit. See Part II, supra; Br. at 20-39.

Further, Appellees concede that the Floodplain Administrator

considered factors outside of the ten factors mandated in the Ordinance.

Resp. at 11. Because, under the proper interpretation of the Ordinance, the

requirements and factors set forth in article 4, section C of the Ordinance are

the exclusive standards by which a permit application must be judged, the

Floodplain Administrator’s consideration of other factors is, per se, an abuse

of discretion. Br. at 49-64.

IV. The Floodplain Administrator’s failure to provide any written explanation of his decision evidences an abuse of discretion and is arbitrary and capricious.

A. The requirement of a written explanation is inherent in the concept of judicial review.

Appellees’ argument that principles of law requiring a written

explanation of an administrator’s decision apply only to “state agencies” is

specious. As explained in DRCP’s opening brief, the power of Texas courts

to judicially review the Floodplain Administrator’s decision necessarily

“implies a power to require the [Floodplain Administrator] to supply any

31 reasons or explanations necessary for the reviewing court to understand the

[Floodplain Administrator’s] final order” so that there may be “meaningful

judicial review” rather than a “charade of the real thing.” City of El Paso v.

El Paso Elec. Co., 851 S.W.2d 896, 900 (Tex. App.—Austin 1993, writ denied);

see generally Br. at 42-44. Although some of the cases cited may involve state

agencies, the principles apply with equal force to counties, and the

Floodplain Administrator.

Similarly, Appellees’ citation to Texas Health Facilities Commission v.

Charter Medical-Dallas, Inc., 665 S.W.2d 446 (Tex. 1984), is inapposite.

Although that case does stand for the proposition that the scope of judicial

review of administrative decisions “is governed by the enabling statute in

the area under adjudication,” id. at 449, that “scope” refers to the standard

of review the court should apply to the agency’s decision. Id. It does not

refer to the requirement that the administrator provide a written

explanation. Indeed, it is hard to apply any standard of review (except de

novo) where the administrator fails to provide any written explanation for

his decision.

Again, Appellees act as if the Floodplain Administrator has unfettered

discretion to reject permit applications for unspecified reasons that only he 32 knows. This is the very essence of the kind of arbitrary and capricious

administrative actions that Texas courts reject. The Floodplain

Administrator’s two-sentence order provides no basis on which to uphold

his naked exercise of standardless discretion. This Court should reject his

attempt to insulate his arbitrary and capricious actions by hiding his reasons

for denying the Permit Application.

B. There is no evidence of any [climate] changed circumstances that justify the disparate treatment of the 1998 and 2013 permit applications.

Showing true desperation, Appellees attempt to tie the Floodplain

Administrator’s denial of DRCP’s permit application to controversial

climate change theories. Resp. at 30. Appellees cite a New York Times

article, which was published (and deals with events) occurring well after the

trial – and thus was not, of course, part of the trial record and, therefore not

properly before this Court. See Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998)

(“We may not consider factual assertions that appear solely in the appellate

briefs and not before the trial court.”).

Moreover, because Appellees cite to the article in an attempt to prove

the truth of the matters discussed therein, the article is rank hearsay. TEX. R.

EVID. 801(d); Walker v. Hitchcock Indep. Sch. Dist., No. 01-11-00797-CV, 2013 33 WL 3771302, at *6 (Tex. App.—Houston [1st Dist.] July 16, 2013, no pet.)

(mem. op.) (“[N]ewspaper articles that are offered to prove the truth of what

the article is reporting are inadmissible hearsay.”); City of Austin v. Houston

Lighting & Power Co., 844 S.W.2d 773, 791 (Tex. App.—Dallas 1992, writ

denied) (“Generally, Texas courts consider newspaper articles inadmissible

hearsay.”).

Further, nothing in the article suggests that there was “a change in

relevant circumstances between 1998 and 2013.” Resp. at 30. Indeed, even

if the events described in the article could possibly suggest a change in

circumstances, they occurred in 2015 and, thus, could not have formed any

part of the Floodplain Administrator’s consideration of the Permit

Application. Appellees’ misleading assertion to the contrary must be

rejected. Further, events in other parts of Texas do not provide any relevant

evidence about Maverick County or the Permit Application at issue here. A

vague prediction that there may be more “extreme weather events” does not

change the analysis in this case. There is simply no evidence in or outside

the record of any relevant changes that would justify in the disparate

treatment of the two Permit Applications. This is just the latest permutation

34 of Appellees’ revisionist justifications of the Floodplain Administrator’s

denial of the Permit Application.

V. Appellees’ novel contention that the Floodplain Administrator’s due process violation was “remedied” by instituting an action for an extraordinary writ is without merit.

Appellees assert that DRCP’s “argument assumes DRCP has a

property interest in a permit it has requested but not yet been granted.”

Resp. at 35. But DRCP’s argument assumes no such thing. It is undisputed

that DRCP has a property interest in the mining area itself, as well as having

a property interest in its state-issued permits from the RRC and TCEQ,

which authorize DRCP to conduct mining operations on its property. Br. at

64-65. Further, Appellees assert that DRCP has not “contended that Judge

Saucedo’s actions stripped it of its ability to use its land in accordance with

its existing permits.” Resp. at 35. But this is precisely what DRCP has argued.

The Floodplain Administrator’s actions have deprived DRCP of its property

interests in its state permits and the use of its property in accord with those

permits. Appellees’ assertions to the contrary is wishful or mistaken.

Moreover, Appellees’ assertion that DRCP received due process

because it had to pursue an extraordinary writ in order to impel the

Floodplain Administrator to perform his duties is absurd. Not surprisingly, 35 Appellees cite no authority for the incredible proposition that a due process

violation is “remedied” through a mandamus proceeding.

PRAYER

Pursuant to TEX. R. APP. P. 43.2, Dos Republicas Coal Partnership

respectfully requests that this Court reverse the trial court’s final judgment

and render judgment in its favor and issue a writ of mandamus ordering the

Floodplain Administrator and the Maverick County Commissioners Court

to issue a floodplain development permit to DRCP. In the alternative, Dos

Republicas Coal Partnership requests that the final judgment be reversed

and the case remanded for the trial court to determine any remaining issues

of fact, or for resolution of any other issues identified by the Court. Finally,

DRCP requests any and all other relief to which it is may be entitled.

36 Respectfully Submitted,

/s/ Bill Cobb Bill Cobb State Bar No. 00796372 Matthew Ploeger State Bar No. 24032838 Jenny L. Smith State Bar No. 24079357 COBB & COUNSEL 401 Congress Avenue, Suite 1540 Austin, Texas 78701 bill@cobbxcounsel.com (512) 693-7570 (512) 687-3432 – Facsimile

Leonard Dougal State Bar No. 06031400 Mallory Beck State Bar No. 24073899 JACKSON WALKER L.L.P. 100 Congress, Suite 1100 Austin, Texas 78701 E: ldougal@jw.com T: (512) 236-2233 F: (512) 391-2112

Attorneys for Appellant Dos Republicas Coal Partnership

37 CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), and relying on the word count function in the word processing software used to produce this document, I hereby certify that the total word count in this document is 7,488.

/s/ Bill Cobb Bill Cobb

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of July, 2015, a true and correct copy of the foregoing document has been served upon the following attorneys by electronic service and email.

Alfonso Nevarez C. Rolando Jasso Nevarez Law Group, PC State Bar No. 10491500 780 Rio Grande Street Claudio Heredia Eagle Pass, Texas 78852 State Bar No. 09505300 anc@nevarezlawgroup.com Knickerbocker, Heredia, Jasso, & mvw@nevarezlawgroup.com Stewart P.C. 468 East Main Street Eagle Pass, Texas 78852-4598 rmjasso@khjslaw.com chlaw750@yahoo.com Law Office of Beth Watkins 926 Chulie Drive San Antonio, Texas 78216 (210) 225-6666—phone (210) 225-2300—fax Beth.Watkins@WatkinsAppeals.com

/s/ Bill Cobb Bill Cobb

Tab 1 Order Denying Dos Republicas Coal Partnership’s Amended Petition for Writ of Mandamus (5 CR 2940)

Tab 2 Findings of Fact and Conclusions of Law (5 CR 3207-12)

Tab 3 Maverick County Flood Damage Prevention Ordinance (1 RR, Exhibit 5)

Tab 4 April 3, 2014 Letter Denying DRCP’s Floodplain Development Permit Application (1 RR, Exhibit 4)

Tab 5 Supplemental Floodplain Analysis, Executive Summary (1 RR, Exhibit 3, at 2-6) TAB 1 '•

NO.l4-03.-29340=MCVI

DOS REPUBLICA$ COAL PARTNERSHIP, § IN THE DIS1RICT COURT Plaintiff § § vs. § § DAVID SAUCEDO as FLOODPLAIN § MAVERICK COUNTY TEXAS ADMINISTRATOR and COUNTY JUDGE § OF THE MAVERICK COUNTY § CO:MMISIONERS COURT and THE § MAVERICK COUNTY COMMISIONERS § COURT § Defendant § 293td JUDICIAL DIS1RICT

ORDER DENYING PLAINTIFF DOS REPUBLICAS COAL PARTNERSHIP'S AMENDED PETITION FOR WRIT OF MANDAMUS

On October 9, 2014, came to be heard Plaintiff Dos Republicas Coal

Pamership (DCCP) Amended Petition for Writ of Mandamus. The Court, having

reviewed the Plaintiff's Writ, and the responses, pleadings, briefs, evidence and

testimony from both Plaintiff and Defendants therein, and having considered

A~E18dt( ~JRiibn fob Writ of same, is of the opinion that Plaintiff DCCP's 1 J,\J_,.O,;.~__JYCLOCKa_M Mandamus should be DENIED. Del 'l 0 2014

for Writ of Mandamus is hereby DENIED.

Signed this \ G¥r'aay of October, 2014.

- 935 --~~~~~--~ PRE 2940 TAB 2 .' CAUSE NO. 14-03-29340-MCV

DOS REPUBLICA$ COAL PARTNERSIDP, § IN THE DISTRICT COURT -- § Plaintiff, § § v. § § DAVID SAUCEDO as FLOODPLAIN § MAVERICK COUNTY, TEXAS ADMINISTRATOR and COUNTY JUDGE § OFTHEMAVlliUCKCOUNTY § COMWSIONERS COURT and THE § MAVERICK COUNTY COMMISIONERS § COURT, § § Defendants. § 293rd JUDICIAL DISTRICT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Plaintiff's Amended Motion for Writ of Mandamus in the above-

captioned cause came on for hearing before the Court on October 9, 2014. All \ parties were present through their attorneys. After considering the pleadings, the

evidence, and the arguments of counsel, the Court entered it's Order Denying tl ~ I Plaintiff's Amended ~otion for Writ of Mandamus on October 10, 2014. On

October 27, 2014, Plair\~iff requested that this Court enter findings of fact and

conclusions of law, which are hereby submitted as follows:

FINDINGS OF FACT

1. On August 15, 1996, the Maverick County Commissioners Court approved and adopted the Maverick County Flood Damage Prevention Ordinance ("Ordinance"). The Ordinance was adopted pursuant to the National Flood Insurance Program and was established to minimize flood losses in Maverick County, Texas. 1

1 Plaintiff Exhibit 5. Maverick County Flood Damage Prevention Ordinance, pg. 1

1 3201 3207 2. Through the Ordinance, the Maverick County Commissioners Court appointed the County Judge as the Floodplain Administrator with the authority to review, and either approve or deny all applications for development permits required by adoption of the Ordinance. 2

3. As per Article 4, Section C(1), an Application for a Development Permit must be presented to the Floodplain Administrator and must include the information contained in Subsections (a)-(e).3

4. As per Article 4, Section C(2), approval or denial of a Development Permit by the Floodplain Administrator shall be based on all of the provisions of the Ordinance and the relevant factors contained in Subsections (a)-G) (the "factors").4

5. On November 3, 2011, Dos Republicas Coal Partnership ("DRCP") filed an Application for Floodplain Permit with Maverick County, as required by the Ordinance. DRCP filed a Supplemental Application on September 4, 2013, after a new FEMA floodplain map was adopted.

6. After reviewing DRCP' s Application and taking into consideration all of the provisions of the Ordinance, the Floodplain Administrator decided that DRCP satisfied the requirements contained in Article 4, Section C(1) contained in the Ordinance, but had concerns with factors (a)-(c) contained in Article 4, Section C(2). 5

7. Factors (a)-(c) cited by Floodplain Administrator are:

(a) The danger to life and property due to flooding or erosion damage; (b) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; and (c) The danger that materials may be swept onto other lands to the injury of others.6

8. As a result of DRCP's failure to address the concerns the Floodplain

2 Id. at pg. 12

3 Id. at pg. 13 4 Id. at pgs. 13-14

5 Plaintiff Exhibit 9, Excerpts from Transcript dated October 2, 3014, Oral and Video Deposition of the Corporate Represet~tative of tl1e Mwerick County Commissioners Court (David Raul Saucedo), pg. 69lines 7-22

6 Id. at pgs. 70-71lines 24-10 2 3202 3208 Administrator had with factors (a)-(c), the Floodplain Administrator denied DRCP's Development Permit 7 . DRCP was notified of the Floodplain Administrators decision in a letter dated April 3, 2014.8 Thereafter, DRCP filed this cause on March 25, 2014.

9. At the October 9, 2014 hearing, DRCP called its expert, civil engineer Paul Padilla. He had prepared the Supplemental Floodplain Analysis to the original 2011 Floodplain Application, which was submitted to the Floodplain Administrator as a Supplemental Application. Paul Padilla testified regarding the requirements for a floodplain permit, and whether DRCP met all the requirements9 .

10. The Court finds that DRCP's expert Paul Padilla failed to demonstrate through his testimony that all ten factors contained in Article 4, Section C (2) (a)-G) of the Ordinance were satisfied, so as to support the granting of the Permit. Specifically, Mr. Padilla failed to address factors (a)-(c) which the Floodplain Administrator referenced as his reason for denying DRCP's Development Permit. 10

11. The Court finds that DRCP's expert, Paul Padilla, failed to demonstrate through his testimony that in his analysis he considered the specific rainfall events Maverick County is and has been susceptible to which have caused significant flooding and damage in Maverick County.'~ 1

12. The Court finds that DRCP' s expert, Paul Padilla, failed to demonstrate through his testimony that in his analysis he considered the contaminants and/or sediment contained in the sedimentation ponds that will overflow in the event of a flood event in Maverick County.12

13. The Permit Procedures are outlined in Article 4, Section C of the Ordinance. There is no requirement in the Ordinance that the Floodplain Administrator's written denial of the Permit specifically address the requirements and/or factors which he considered as the basis for his decision. 13

14. The Court finds that the "best interest of [Maverick] county" was not a basis

7 Deposition of David Raul Saucedo, pg. 69 lines 7-14 8 Plaintiff Exhibit 4, Defendant's letter of denial, April3, 2014 9 Exce.r pts from Transcript dated October 9, 2014, Hearing on Abatement and Writ of Mandamus, p.31 10 Id. pg. 69 lines 9-21 11 Id. at lines 18-21 12 Id. at lines 9-17

13 Floodplain Prevention Ordinance, pgs.13-14 3 320 3 3209 for Defendants' decision standing alone, but was merely referenced when considering the Ordinance was designed to minimize flood losses in flood hazard areas of Maverick County, Texas.

15. The Court finds that the Floodplain Administrator's personal experiences were not a basis for Defendants' decision standing alone, but knowledge of the specific rainfall events in Maverick County which have caused significant flood damage in Maverick County was a mere reference when considering factors (a)-(c) contained in the Ordinance.

16. The Court finds that the Texas Coal Mining Regulations was not a basis for Defendants' decision standing alone, but was a mere reference when considering factors (a)-(c) contained in the Ordinance.

17. The Court finds that the floodwater quality was not a basis for Defendants' decision standing alone, but was a mere reference when considering the factors contained in the Ordinance; specifically, the danger to life and property due to flooding or erosion damage, and the danger that materials may be swept onto other lands to the injury of others.

18. The Court finds that the Floodplain Administrator denied DRCP's permit based on the concern that if the permit was approved, the occurrence of a flooding event (such as the flooding events experienced by Maverick County in the past) will carry sediment and/or contaminants downstream into the homes of Maverick County citizens and into Elm Creek.

19. The Court finds that the Floodplain Administrator based his decision to deny DRCP's Development Permit on all of the provisions of the Ordinance and the relevant factors, as he was authorized to do by Article 4 of the Ordinance. 14

20. The Court finds that the Floodplain Administrator did not abuse his discretion when rendering his decision to deny DRCP' s Development Permit.

CONCLUSIONS OF LAW 1. A district court may issue a writ of mandamus to rectify an abuse of discretion, when a Commissioners Court acts illegally, unreasonably, or arbitrarily.

14 Deposition of David .Raul Saucedo, pg. 69 lines 7-14 4 320 4 3210 2. A Commissioners Court abuses its discretion-necessitating mandamus relief-when it either: (A) fails to perform a purely ministerial act, or (B) fails to consider a factor the Legislature directs it to consider, or considers an irrelevant factor.

3. Defendants considered all of the provisions of the Ordinance as well as the relevant factors as per Article 4, Section C(2) of the Ordinance, and denial of DRCP' s Development Permit did not constitute an abuse of discretion.

4. Defendants were not required to provide the reasons for denying DRCP' s Development Permit Application and Supplemental Application at the time of issuing the denial, and the failure to do so, did not constitute an abuse of discretion.

5. Defendants did not consider any irrelevant factors when denying DRCP' s Development Permit Application and Supplemental Application and the denial of same did not constitute an abuse of discretion.

6. Defendants' reference to the best interest of the county, floodwater quality, surface coal mining regulations, and personal experience was not a basis for Defendants' decision standing alone and that reference did not render Defendants' denial of DRCP' s Development Permit Application and Supplemental Application arbitrary and capricious.

7. The Ordinance does not deprive DRCP of the use of its property because Defendants' denial of DRCP's Development Permit Application does not deprive it of all economically viable uses of its property, therefore due process is not an issue, and the denial was not arbitrary or capricious or an abuse of discretion.

8. The Floodplain Administrator was required, under Article 4, Section C(2) to approve or deny DRCP's Development Permit Application and Supplemental Application based on all of the provisions of the Ordinance, and the relevant factors listed in (a)-G).

9. The Floodplain Administrator was not required, and did not have a ministerial duty to grant DRCP' s Development Permit Application and Supplemental Application if the Floodplain Administrator found that the application did not meet the provisions of the Ordinance and relevant factors.

3211 3205 10. DRCP's Development Permit Application and Supplemental Application did not satisfy the requirements of the Ordinance and the act of approving or denying it was not a ministerial act therefore, the Floodplain Administrator's denial of the permit was not illegal, arbitrary or capricious or an abuse of discretion.

F\LED A+±03o'CLOCK£_M DEC 5 2014

6 3206 3212 TAB 3 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 12/22/2014 3:27:24 PM DORIAN E. RAMIREZ Clerk TAB 4 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 12/22/2014 3:27:24 PM DORIAN E. RAMIREZ Clerk TAB 5 Authorities Bradley v. State ex rel. White, 990 S.W.2d 245 (1999) 42 Tex. Sup. Ct. J. 513

proceedings violated Texas Rule of Civil Evidence 605. 1 We 990 S.W.2d 245 agree. Therefore, we reverse the court of appeals' judgment Supreme Court of Texas. for the State and render judgment for Bradley.

Scott BRADLEY, Petitioner, v. I. BACKGROUND The STATE of Texas on the Relation of Dale WHITE, Respondent. In May 1994, Scott Bradley was elected Mayor of Westlake, a general-law municipality. He was reelected in May 1996. On No. 97–1135. | Argued Sept. April 14, 1997, Howard Dudley, a Westlake alderman, filed 28, 1998. | Decided April 8, 1999. a complaint against Bradley alleging official misconduct and incompetency. Specifically, Dudley alleged that Bradley (1) State brought quo warranto action when mayor purported canceled a special town meeting called by alderman Carroll to remain in office after removal trial conducted by board Huntress and removed the public notice of the meeting; (2) of aldermen. The 342nd District Court, Tarrant County, directed the Town Secretary to exclude from the meeting Bob McGrath, J., entered summary judgment for mayor, agenda an item Huntress requested and to remove a part of and State appealed. The Court of Appeals, 956 S.W.2d the proposed minutes from another town meeting; and (3) 725, reversed and rendered. Mayor filed petition for review. caused the Town Engineer to prepare a false boundary map of The Supreme Court, Baker, J., held that testimony of Westlake, and then presented the falsified map to the Board aldermen in proceeding in which board of aldermen were of Aldermen as part of an ordinance. adjudicating whether to remove mayor from office violated rule prohibiting judge from acting as witness in trial over On April 28, 1997, the Westlake Board of Aldermen sat as which judge is presiding, and thus, board of aldermen did not a court to hear the charges against Bradley and to decide lawfully remove mayor from office. whether there was sufficient cause for his removal from the Mayor's office. During the trial, Dudley and another Reversed and rendered. alderman, Al Oien, testified against Bradley. Dudley testified that he had provided Bradley with a request for and notice Abbott, J., filed a concurring opinion. of the meeting Bradley allegedly canceled. Oien testified that when the Board passed the ordinance at issue, no map Attorneys and Law Firms was attached to it. At the end of the trial, four of the five aldermen, including Dudley and Oien, found Bradley guilty *246 Bob E. Shannon, Joe R. Greenhill, Scott K. Field, of the charges. On motion made by Oien and seconded by Austin, E. Eldridge Goins, Jr., James W. Morris, Jr., Jeffrey Dudley, the Board voted to remove Bradley as Mayor of S. Wigder, Dallas, for Petitioner. Westlake. Days later, the aldermen appointed Dale White as Mayor. Bradley refused to recognize the aldermen's judgment Ann Diamond, Tim Curry, Marshall M. Searcy, Jr., Dee J. on the grounds that the removal procedure violated applicable Kelly, William N. Warren, Michael Schattman, Barbara P. procedural rules, substantive state law, and his federal and Neely, Fort Worth, for Respondent. state constitutional rights.

Opinion On May 20, 1997, the State of Texas, on relation of Dale Justice BAKER delivered the opinion of the Court, in which White, filed a quo warranto action seeking a declaration Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, that White, not Bradley, was the lawful Mayor. The State Justice OWEN, Justice HANKINSON, Justice O'NEILL and alleged that: (1) the aldermen had lawfully removed Bradley Justice GONZALES join. from the Mayor's office under Texas Local Government Code section 21.002(f); (2) the aldermen had lawfully appointed This is a quo warranto case. Scott Bradley asserts that the Dale White as Mayor; (3) White had taken the oath of office Board of Aldermen of the Town of Westlake, Texas did on May 2, 1997, and therefore, lawfully held office as Mayor; not lawfully remove him as Mayor under section 21.002(f) and (4) Bradley had unlawfully usurped and intruded into the of the Texas Local Government Code because the removal Mayor's office since his lawful removal. The State filed a

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motion for summary *247 judgment asserting as grounds the 898, 900 (Tex.1988). The reviewing court should render allegations in its quo warranto petition. the judgment that the trial court should have rendered. See Agan, 940 S.W.2d at 81; Members Mut. Ins. Co. v. Hermann Bradley filed a cross-motion for summary judgment. In his Hosp., 664 S.W.2d 325, 328 (Tex.1984). If a party brings summary judgment motion Bradley alleged the following the case to this Court and we reverse the court of appeals, affirmative defenses: (1) Texas Local Government Code we should render the judgment that the court of appeals section 21.002 violates the Texas Constitution's separation should have rendered. See Agan, 940 S.W.2d at 81; Tobin of powers doctrine; (2) section 21.002 is unconstitutionally v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400–01 (1958). vague; (3) Bradley's removal trial violated his federal and When a trial court's order granting summary judgment does state procedural due process rights; (4) a section 21.002 not specify the grounds relied upon, the reviewing court removal trial is penal in nature, and Bradley was denied his must affirm summary judgment if any of the summary state constitutional right to a jury trial; (5) the aldermen were judgment grounds are meritorious. See Star–Telegram, Inc. v. disqualified under the Texas Constitution to sit as judges Doe, 915 S.W.2d 471, 473 (Tex.1995). We do not consider in the removal trial because they had a pecuniary interest constitutional challenges when we can dispose of a case on in the outcome; (6) the removal trial violated Texas Rules nonconstitutional grounds. See Transportation Ins. Co. v. of Civil Evidence 605, 607, and 611b, and Texas Rules of Moriel, 879 S.W.2d 10, 13 (Tex.1994). Civil Procedure 18b, 527, 528, 544, and 571; (7) the removal trial violated the Texas Open Meetings Act; (8) the evidence at trial did not support Bradley's removal; (9) the removal B. REMOVAL PROCEDURES judgment became a nullity when a new board of aldermen granted Bradley's motion for new trial; and (10) the removal The Texas Local Government Code governs a mayor's judgment became a nullity when Bradley filed an appeal bond removal from office in a general-law municipality. See TEX. with the new board of aldermen. LOC. GOV'T CODEE § 21.002. A mayor may be removed from office for official misconduct, intentional violation of The trial court denied the State's motion for summary a municipal ordinance, habitual drunkenness, incompetency, judgment and granted Bradley's motion for summary or a cause prescribed by a municipal ordinance. See TEX. judgment without specifying upon which of Bradley's LOC. GOV'T CODEE § 21.002(c). When a complaint is summary judgment grounds it based its judgment. The court made against the mayor, the complaint must be presented of appeals held that the State had conclusively proved the to an alderman of the municipality. See TEX. LOC. GOV'T elements of its quo warranto action. 956 S.W.2d at 745. The CODEE § 21.002(f). *248 The alderman shall then file the court of appeals also held that Bradley had not conclusively complaint, serve the mayor with a copy, set a date for trial proved all essential elements of his defense in quo warranto as of the case, and notify the mayor and the other aldermen a matter of law nor had he defeated at least one element of the to appear on that day. See TEX. LOC. GOV'T CODEE State's quo warranto claim. Accordingly, the court of appeals § 21.002(f). A majority of the municipality's aldermen reversed the trial court's judgment and rendered summary constitutes a court in the mayor's removal trial with one of judgment for the State. the aldermen presiding over the trial. See TEX. LOC. GOV'T CODEE § 21.002(f). If two-thirds of the members of the court who are present at the trial find the mayor guilty of the II. APPLICABLE LAW complaint's charges and find that the charges are sufficient cause for removal from office, the court's presiding officer shall enter a judgment removing the charged officer and A. STANDARD OF REVIEW—CROSS declaring the office vacant. See TEX. LOC. GOV'T CODEE MOTIONS FOR SUMMARY JUDGMENT § 21.002(h).

[1] [2] [3] [4] When both sides move for summary Section 21.002 removal proceedings are subject to the judgment and the trial court grants one motion and denies the procedural rules governing the justice courts and to other, the reviewing court should review both sides' summary procedural rules governing district and county courts, to judgment evidence and determine all questions presented. the extent these govern justice courts. See TEX. LOC. See Commissioners Court of Titus County v. Agan, 940 GOV'T CODEE § 21.002(h); TEX.R. CIV. P. 523 (“All rules S.W.2d 77, 81 (Tex.1997); Jones v. Strauss, 745 S.W.2d

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governing the district and county courts shall also govern the Comments of the Federal Advisory Committee on Proposed justice courts, insofar as they can.”) In addition, the Texas Rules indicate that Federal Rule of Evidence 605 purports Rules of Civil Evidence apply to section 21.002 trials. See to protect the appearance of impartiality. The Committee TEX.R. CIV. EVID. 101(b) (“[E]xcept as otherwise provided describes Federal Rule of Evidence 605 as: by statute, these rules govern civil proceedings in all Texas courts other than small-claims courts.”). a broad rule of incompetency, rather than [a rule of] incompetency only as to material matters, leaving the matter to the discretion of the judge, C. TEXAS RULE OF CIVIL EVIDENCE 605 or recognizing no incompetency. The choice is the result of inability “The judge presiding at the trial may not testify in that to evolve satisfactory answers to trial as a witness. No objection need be made in order to questions which arise when the judge preserve this point.” TEX.R. CIV. EVID. 605. Texas Rule abandons the bench for the witness of Civil Evidence 605 is identical to its federal counterpart. stand. Who rules on objections? *249 See FED.R.EVID. 605. Not surprisingly, there are few Who compels him to answer? Can reported federal or state cases involving Rule 605 violations. he rule impartially on the weight and Most cases that do involve judges testifying at the trial admissibility of his own testimony? over which they are presiding are decided on due process Can he be impeached or cross- grounds. See, e.g.,Brown v. Lynaugh, 843 F.2d 849, 851 (5 examined effectively? Can he, in a th Cir.1988); Tyler v. Swenson, 427 F.2d 412, 415 (8 th jury trial, avoid conferring his seal of Cir.1970); Terrell v. United States, 6 F.2d 498, 499 (4 th approval on one side in the eyes of Cir.1925); Haynes v. State of Missouri, 937 S.W.2d 199, 202 the jury? Can he, in a bench trial, (Mo.1996); Wilson v. Oklahoma Horse Racing Comm'n, 910 avoid an involvement destructive of P.2d 1020, 1024 (Okla.1996). These cases hold that a judge impartiality? testifying as a witness violates due process rights by creating a constitutionally intolerable appearance of partiality. See FED.R.EVID. 605 advisory committee's note. Brown, 843 F.2d at 851 (“[I]t is difficult to see how the neutral role of the court could be more compromised, or more Indeed, one of the few federal cases to apply Rule 605 held blurred with the prosecutor's role, than when the judge serves that it was reversible error for a trial judge's law clerk to testify as a witness for the state.”); Tyler, 427 F.2d at 416 (“The about facts favorable to the plaintiff because the danger that danger ... of subjecting [the judge's] impartiality to doubt the jury would identify the law clerk with the trial judge was and of placing the [party against whom the judge testifies] obvious. See Kennedy v. Great Atl. & Pac. Tea Co., 551 F.2d at an unfair disadvantage ... is very obvious.”); see also In 593, 598 (5 th Cir.1977). The court held that the “potential Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. for prejudice” was so great that it rendered inquiry into actual 942 (1955)(disapproving of the “spectacle” of a trial judge prejudice to the parties “fruitless.” See Kennedy, 551 F.2d at presenting testimony which he must consider in adjudicating 598. guilt or innocence). [5] Rule 605 does not only apply to members of the Rule 605 is similarly concerned with the appearance of judiciary, but also to those performing judicial functions that partiality. See Hensarling v. State, 829 S.W.2d 168, 170 conflict with a witness's role. See Gary W. v. Louisiana Dept. (Tex.Crim.App.1992)(referring to Texas Rule of Criminal of Health and Human Resources, 861 F.2d 1366, 1368 (5 Evidence 605, which is identical to Texas Rule of Civil th Cir.) (applying Rule 605 to prohibit deposition of special Evidence 605 and noting that the Rule's purpose is to master appointed to ensure compliance with protective order preserve the judge's posture of impartiality before the parties in family law case); Central Platte Natural Resources Dist. and the jury); WRIGHT & GOLD, FEDERAL PRACTICE v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847, 864 AND PROCEDURE: EVIDENCE § 6062 (1990)(referring to (1994) (applying Rule 605 and holding that court properly Federal Rule of Evidence 605). excluded testimony of doctor who assisted in decision making process in administrative adjudication); but see Williams v.

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State, 11 Ark.App. 11, 665 S.W.2d 299 (1984) (permitting *250 The concurring opinion asserts that section 21.002 testimony from trial court's bailiff, called as a rebuttal witness is void for vagueness because the statute does not specify to impeach a defense witness's credibility). which justice court and district court rules apply to removal trials. The concurrence concedes, however, that the language of section 21.002 and Texas Rule of Civil Procedure 523 indicate that Texas Rule of Civil Evidence 605 applies to III. ANALYSIS removal trials. The concurrence suggests that, nevertheless, [6] Because the trial court did not specify upon which Rule 605 should not apply because aldermen may be the ground it rendered summary judgment for Bradley, we can only people familiar with the facts that form the basis for the render judgment for Bradley if one of Bradley's summary complaint against a mayor. judgment grounds is meritorious. See Star–Telegram, 915 S.W.2d at 473. We first consider Bradley's nonconstitutional Here, however, there is no indication that Oien and Dudley's summary judgment grounds. See Moriel, 879 S.W.2d at 13. testimony was necessary to the removal proceedings. On the One of Bradley's summary judgment grounds is that he was contrary, the record reveals that it was not. Bradley himself not lawfully removed from office as the State's quo warranto admitted the substance of the first complaint. He testified at action alleges because Oien and Dudley testified against him the removal trial that he canceled the meeting Huntress had while they sat in judgment over his removal trial, violating called and removed the posted public notice of the meeting. 2 Texas Rule of Civil Evidence 605. The court of appeals Bradley's concession rendered Dudley's testimony—that he responded to Bradley's Rule 605 argument by citing case law had provided Bradley with notice of and a request for the that holds that aldermen who assert a complaint against a meeting—unnecessary. The aldermen voted that Bradley was mayor are not disqualified from judging the mayor's removal guilty of canceling the meeting and removing notice of the hearing. See Riggins v. Richards, 97 Tex. 229, 77 S.W. 946, meeting and that those actions alone were sufficient cause for 949 (1904). The court of appeals then noted that section removal. Accordingly, Oien's testimony, which dealt solely 21.002 allows all citizens of general-law municipalities, with the falsified-map charge, was not necessary to the including aldermen, to file a complaint against a mayor. See removal proceedings either. TEX. LOC. GOV'T CODEE § 21.002(f). However, the court of appeals did not discuss the aldermens' dual roles as judges and witnesses against Bradley in the removal trial. IV. CONCLUSION

Although Oien and Dudley are not members of the judiciary, We conclude that Oien and Dudley, by testifying, violated they assumed judicial roles in the removal trial, roles Texas Rule of Civil Evidence 605. Therefore, the Board which conflicted with their roles as witnesses. Section of Aldermen did not lawfully remove Bradley as Mayor. 21.002 required the aldermen to sit as a “court” over Because Bradley conclusively negated an element of the the removal “trial.” See TEX. LOC. GOV'T CODEE § State's quo warranto action—that the aldermen had lawfully 21.002(f), (g), and (h). Oien and Dudley, along with their removed Bradley under section 21.002—the court of appeals fellow aldermen, decided whether Bradley had committed the improperly reversed the trial court's judgment for Bradley. acts the complaint described and if so, whether these acts We do not need to consider any of Bradley's other summary warranted removal. judgment grounds. Accordingly, we reverse the court of appeals' judgment and render judgment for Bradley on the Oien and Dudley testified against Bradley about the facts that State's quo warranto action. We declare that Bradley was the served as the basis for the complaint and then adjudicated lawful Mayor of the Town of Westlake when the State filed whether Bradley was guilty of the complaint's charges. Their its quo warranto action. testimony created the appearance of bias that Rule 605 seeks to prevent and such a potential for prejudice to Bradley that inquiry into actual prejudice is fruitless. Accord Kennedy, 551 F.2d at 598. Therefore, we need not and do not conduct a harm Justice ABBOTT filed a concurring opinion. analysis. Justice ABBOTT, concurring.

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The Court holds that the Westlake Board of Aldermen example, Bradley requested a venue change and jury trial violated Texas Rule of Civil Evidence 605 when board that justice court rules provide for, but both requests conflict members who sat as judges in Bradley's removal court also with the statute's express statement that “[a] majority of testified as witnesses against him. In so doing, the Court the aldermen constitutes a court to try and determine the sidesteps a more fundamental flaw in the removal: the statute case against the mayor.” TEX. LOC. GOV'T CODE § governing removal proceedings is unconstitutionally vague 21.002(g). This specific textual provision of the statute and thus denies Bradley due process and due course of law. precludes Bradley's proposal to apply all justice court rules See U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, § and all rules of civil procedure. See TEX. GOV'T CODE § 19. Because I would hold the statute used to remove Bradley 311.026 (codifying the common-law doctrine for statutes in is void for vagueness, I concur in the Court's judgment. pari materia, which states that when an irreconcilable conflict occurs between a general and a special statutory provision, the special provision prevails as an exception to the general provision). As the State contends, application of all the justice I court rules and rules of civil procedure would lead to an The statute providing for removal of a mayor in a general- “absurd result.” law municipality such as Westlake states that “a majority of the aldermen constitutes a court to try and determine The interpretation of the statute that the State urges suffers the case against the mayor,” and the removal proceeding from its own flaws. The State's argument leaves it to the “is subject to the rules governing a proceeding or trial in caprice of the aldermen—many of whom are untrained in the a justice court.” TEX. LOC. GOV'T CODE § 21.002(g), rules of procedure and evidence—to pick and choose which (h). Bradley asserts that a removal proceeding is a civil rules may apply to a removal proceeding, and to choose which proceeding, and civil justice court rules provide for, among rules may not apply because they are “in conflict with” the structure of removal proceedings. A mayor subject to these other things, venue change, 1 empaneling of juries, 2 a right removal proceedings would not know exactly which rules to appeal, 3 and *251 a right to move for new trial. 4 Bradley apply until the aldermen make that decision—a decision that further argues that Rules of Civil Procedure and Evidence may not be made until the proceedings are already underway. apply through Texas Rule of Civil Procedure 523, which In effect, the State asks the Court to swap the “absurd result” states that “[a]ll rules governing the district and county courts that follows from Bradley's contentions for the arbitrariness shall also govern the justice courts, insofar as they can be that follows from its own proposal. applied, except where otherwise specifically provided by law or these rules.” TEX.R. CIV. P. 523. Bradley contends that The Court should not be constrained to choose the lesser 5 these applicable rules provide for recusal of judges, prohibit of the evils presented by the parties. Instead, the statute's judges from testifying in cases in which they sit, 6 and unavoidable incongruities and ambiguities lead me to allow the right to full cross-examination and impeachment of conclude, as Bradley argues in the alternative, that it is unconstitutionally vague. witnesses. 7

The State responds that “to graft onto § 21.002 all of the rules of civil procedure would render the statute virtually II meaningless” and “would lead to an absurd result.” Following the State's logic, the court of appeals concluded that justice Under the United States Constitution, “[i]t is a basic principle court rules should apply when they are “not in conflict with” of due process that an enactment is void for vagueness if the intended structure of removal proceedings. 956 S.W.2d its prohibitions are not clearly defined. Vague laws offend 725, 738. several important values.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). They Both approaches are flawed. Bradley's contention founders “may trap the innocent *252 by not providing fair warning” upon the clear text of the statute. Although section 21.002(h) and they “impermissibly delegate[ ] basic policy matters to states that a removal proceeding is subject to the rules policemen, judges, and juries for resolution on an ad hoc governing a justice court trial, several justice court rules and subjective basis, with the attendant dangers of arbitrary directly contravene requirements of section 21.002. For and discriminatory application.” Id. at 108–09, 92 S.Ct. 2294.

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In order to avoid these dangers, the Due Process Clause Antiquities Comm., 554 S.W.2d at 927 (plurality decision requires that laws be reasonably clear. As the Supreme Court stating that “varying degrees of specific standards” have explained, due process: been required in testing vagueness and breadth of legislative delegations, “[d]epending upon the nature of the power, the ensures that state power will be agency, and the subject matter”). In the case of this statute, exercised only on behalf of policies the Court should consider that few actors deserve more clarity reflecting an authoritative choice than elected officials who can be removed from office at the among competing social values, hands of other competing elected officials. reduces the danger of caprice and discrimination in the administration of the laws, enables individuals to conform their conduct to the III requirements of law, and permits The statute at issue, which provides for removal of a mayor meaningful judicial review. in a general-law municipality, is a civil statute. See Meyer v. Roberts v. United States Jaycees, 468 U.S. 609, 629, 104 S.Ct. Tunks, 360 S.W.2d 518, 520–21 (Tex.1962) (action to remove 3244, 82 L.Ed.2d 462 (1984). a county officer is civil in nature). Our vagueness review must therefore apply a more tolerant standard for civil statutes. 8 Responding to these concerns, the United States Supreme Court and this Court have long applied the principle that The statute fails even under that deferential standard. In Texas statutory language may not be so vague that persons “of Antiquities Committee, a plurality of the Court professed that common intelligence must necessarily guess at its meaning “[t]here has been called to our *253 attention no case in and differ as to its application.” Connally v. General Constr. Texas or elsewhere in which ... powers ... are more vaguely Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 expressed or less predictable than those permitted by the (1926), quoted in Texas Antiquities Comm. v. Dallas County phrase in question.” Texas Antiquities Comm. 554 S.W.2d Community College Dist., 554 S.W.2d 924, 928 (Tex.1977) at 927. 9 The exercise of powers under this statute is hardly (plurality opinion). more predictable. In the context of a proceeding to remove a mayor in which his fellow aldermen are directed to sit as a Although the vagueness standard applies most frequently to court, the phrase “subject to the rules governing a proceeding penal statutes, a civil statute may also be so vague that it or trial in a justice court” may at first glance seem clear. When violates due process. See A.B. Small Co. v. American Sugar one is forced to apply the provision, however, the inherent Ref. Co., 267 U.S. 233, 239–40, 45 S.Ct. 295, 69 L.Ed. 589 ambiguities become inescapable. The confusion and potential (1925) (explaining that the rationale of previous vagueness disregard for Bradley's rights that his petition describes— cases is not limited only to criminal cases because “[i]t was as well as similar predicaments described by amici 10 — not the criminal penalty that was held invalid, but the exaction illustrate this lack of a comprehensible standard. of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all”); Jones v. A significant number of civil rules for a justice court City of Lubbock, 727 F.2d 364, 373 (5 th Cir.1984); Texas either conflict directly with the statute's scheme for removal Antiquities Comm., 554 S.W.2d at 927–28 (plurality decision proceedings, 11 or they provide no relevant guidance to striking down a civil statute as unconstitutionally vague). The degree of clarity that the vagueness standard requires, a board of aldermen. 12 Whether other justice court rules however, “varies according to the nature of the statute, and the apply has been and will continue to be a matter of need for fair notice or protection from unequal enforcement.” guesswork for aldermen, mayors, and even reviewing courts, Jones, 727 F.2d at 373; see also Village of Hoffman Estates v. leaving a situation ripe for “resolution on an ad hoc and The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 subjective basis, with the attendant dangers of arbitrary and S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“[Vagueness] standards discriminatory application.” Grayned, 408 U.S. at 109, 92 should not, of course, be mechanically applied. The degree S.Ct. 2294. For example, does the successful party recover of vagueness that the Constitution tolerates—as well as the costs as provided by Civil Rule 559? 13 Can the removal relative importance of fair notice and fair enforcement— “court” order a new trial, as provided by Civil Rules 567– depends in part on the nature of the enactment.”); Texas

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70? 14 If so, could a new trial be ordered by newly elected “a majority of the aldermen constitutes a court.” Assuming, aldermen taking the place of the aldermen who presided over as the Court does, that Evidence Rule 605 or Civil Procedure the original trial? Rule 18b apply, what occurs if at least half of the aldermen must be recused because of bias or the necessity that Texas Rule of Civil Procedure 523, which states that rules they testify? The statute provides no guidance—“no rule or governing district and county courts shall also govern justice standard at all.” 15 Neither does the Court. courts, creates an assortment of other conundrums. Do Evidence Rule 605, prohibiting a judge from testifying as a witness, and Texas Rule of Civil Procedure 18b, providing IV for recusal of interested judges, apply to aldermen sitting as removal judges? Evidently the Court believes that Civil Admittedly, courts “will often strain to construe legislation Procedure Rule 605 applies, and both of these rules would so as to save it against constitutional attack.” Scales v. seem to apply under the language of both the statute and Civil United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 6 L.Ed.2d Procedure Rule 523. However, these rules stand opposed 782 (1961). Nevertheless, even if the Court assumed the to the reality that the very aldermen who sit as a court to burden of repairing this paradoxical statute, the task would try the mayor may also be the ones who bring the charge, require such a revision of the Legislature's words that “may have substantial knowledge of the evidence to be the Court would exceed the bounds of its proper role in presented,” or may have had past differences with the mayor. our divided government. The “constructions” urged by the See Quinn v. City of Concord, 108 N.H. 242, 233 A.2d 106, parties would require us either to ignore specific words 108 (1967); see also Rutter v. Burke, 89 Vt. 14, 93 A. 842, of the statute or to write our own ad hoc exceptions 849 (1915) (holding that a mayor who acted as accuser, into the statute. As one scholar has recognized, “there prosecutor, and witness was not disqualified from voting, is a difference between adopting a saving construction because “the Constitution of the city council, its exclusive and rewriting legislation altogether.” TRIBE, AMERICAN jurisdiction as a trier, and the diversity of duties imposed upon CONSTITUTIONAL LAW § 12–30, at 1032 (2d ed., 1988). it, preclude the idea that impartiality can be made the test” We are invited to do the latter, but I believe we should of the right of a board member to sit in a proceeding); State decline the invitation. See West Virginia State Bd. of Educ. v. Common Council, 72 Wis.2d 672, 242 N.W.2d 689, 698 v. Barnette, 319 U.S. 624, 651, 63 S.Ct. 1178, 87 L.Ed. 1628 (1976) *254 ( “[T]he mere fact that [a council member] (1943) (“It is, of course, beyond our power to rewrite the had stated under oath ... that there were grounds to remove State's requirement....”) (Frankfurter, J., dissenting); United [the city clerk] did not disqualify him from subsequently States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875) (“To sitting as an impartial adjudicator.”); 4 MCQUILLIN, THE limit this statute in the manner now asked for would be to LAW OF MUNICIPAL CORPORATIONS § 12.259.20, at make a new law, not to enforce an old one. This is no part of 595 (3rd ed. 1992) (“[I]n a proceeding to remove, members our duty.”). of the council are not disqualified because of the fact that they were members of a committee to investigate and afterwards Rewriting a statute rife with traps and uncertainties is the preferred charges; the fact that they may have formed an power and duty of the Legislature. As the controversy at opinion concerning the accused is regarded as immaterial.”). hand evinces, the decisions of local governments affect the Indeed, the aldermen may well be the only people familiar lives of their citizens as profoundly and concretely as those with the facts underlying the removal proceeding. Cf. id. of any other level of government. Sometimes a mayor's § 12.259.25, at 598 (“Particularly, an objection for bias conduct necessitates removal proceedings. Nevertheless, against ... a member of a hearing tribunal will not be sustained such proceedings can reverse a majority of the local citizens' where to do so would destroy the only tribunal with power judgment as to who is best to lead them. Consequently, our in the premises.”). Rare would be the occasion when a state government owes a duty not only to the mayor but to his mayor could be tried by truly disinterested, unbiased, and colleagues and constituents to ensure that such proceedings uninformed aldermen. Yet that is the fiction that the Court are neither arbitrary nor unfair, and never unconstitutional. forces upon the parties. This vague and unwieldy statute fails to carry out the task. I urge the Legislature to mend it soon. Ignoring these probabilities and applying these rules sets the stage for future enigmas. For instance, the statute states that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Bradley v. State ex rel. White, 990 S.W.2d 245 (1999) 42 Tex. Sup. Ct. J. 513

All Citations

990 S.W.2d 245, 42 Tex. Sup. Ct. J. 513

Footnotes 1 Because the removal trial was held April 28, 1997, the former Texas Rules of Civil Evidence apply. Former Texas Rule of Civil Evidence 605 is identical to current Texas Rule of Evidence 605. See TEX.R. EVID. 605. 2 Bradley testified that he canceled the meeting and removed the notice because it was an illegally called meeting. 1 See TEX.R. CIV. P. 528. 2 See TEX.R. CIV. P. 544. 3 See TEX.R. CIV. P. 573. 4 See TEX.R. CIV. P. 567. 5 See TEX.R. CIV. P. 18b. 6 See TEX.R. CIV. EVID. 605 (currently TEX.R. EVID. 605). 7 See TEX.R. CIV. EVID. 607 (currently TEX.R. EVID. 607); TEX.R. CIV. EVID. 611(b) (currently TEX.R. EVID. 611 (b)). 8 See Chavez v. Housing Auth., 973 F.2d 1245, 1249 (5 th Cir.1992) (A civil statute that does not implicate the First Amendment is sufficiently unclear to violate due process if it is “ ‘so vague and indefinite as really to be no rule or standard at all’ or if it is ‘substantially incomprehensible’ ”); Jones, 727 F.2d at 373 (same). 9 The vague phrase in Texas Antiquities Committee was “buildings ... and locations of historical ... interest.” Id. 10 Amici Paul Skelton and Marian Hill describe their experiences with removal proceedings in Parker and Seven Points, Texas. Skelton argues that the court of appeals' construction of the removal statute violates separation of powers and due process guarantees. Hill argues that the removal statute in question is unconstitutionally vague. 11 See TEX.R. CIV. P. 527–32 (relating to motions to transfer and venue changes); TEX.R. CIV. P. 540, 542, 544–56 (relating to juries). 12 See TEX.R. CIV. P. 524 (justices to keep a civil docket); TEX.R. CIV. P. 533 (requisites for writ or process from justice courts); TEX.R. CIV. P. 543 (dismissal for plaintiff's failure to appear); TEX.R. CIV. P. 560 (judgment for specific articles of property); TEX.R. CIV. P. 561 (enforcing a judgment for property). 13 See TEX.R. CIV. P. 559. 14 See TEX.R. CIV. P. 567–70. 15 See Chavez, 973 F.2d at 1249; Jones, 727 F.2d at 373.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

City of Austin (Austin) appeals a take-nothing judgment rendered in favor of Houston Lighting & Power Company 844 S.W.2d 773 and its parent company, Houston Industries, Inc. (collectively Court of Appeals of Texas, HL & P), in this action for breach of a contract to build a Dallas. nuclear power plant, fraud, and violation of the Deceptive CITY OF AUSTIN, Appellant, Trade Practices Act (DTPA). In six points of error, Austin v. argues that the trial court erred by (1) sustaining HL & P's HOUSTON LIGHTING & POWER COMPANY special exceptions to Austin's cause of action for breach of the implied duty to perform the contract with skill and Houston Industries, Inc., Appellees. and care, (2) overruling Austin's hearsay objections to the No. 05–89–01354–CV. | Oct. 7, admission of several newspaper articles, (3) refusing Austin's 1992. | Rehearing Denied Nov. 18, 1992. requested jury questions and instructions, (4) overruling Austin's objections to jury question two, and (5) overruling City which participated in nuclear facility construction Austin's motion for new trial. HL & P raises what it project sued managing participant for breach of contract, characterizes as two conditional cross-points, but what this fraud, and violation of Deceptive Trade Practices Act Court would term counterpoints. See Jackson v. Ewton, 411 (DTPA). The 101st Judicial District Court, Dallas County, S.W.2d 715, 717 (Tex.1967); Ragsdale v. Progressive Voters Clarence A. Guittard, J., rendered take-nothing judgment League, 743 S.W.2d 338, 342 (Tex.App.—Dallas 1987), for managing participant. City appealed. The Court of rev'd on other grounds,790 S.W.2d 77 (Tex.1990). HL & Appeals, Kinkeade, J., held that: (1) managing participant P argues that we should affirm the trial court's judgment had no implied duty to perform contract with skill and care; because there is no evidence that any failure by HL & P to (2) certain newspaper articles were not hearsay; and (3) provide information caused any cost increase and because managing participant did not violate DTPA. Austin is not a “consumer” as to HL & P as defined by the DTPA. Because the trial court did not err by (1) granting Affirmed. HL & P's special exceptions, (2) admitting the newspaper *778 articles, (3) refusing to submit Austin's requested jury questions and instructions, (4) overruling Austin's objections Attorneys and Law Firms to jury question two, and (5) denying Austin's motion for new trial, we overrule all of Austin's points of error and need not *777 Fulbright & Jaworski, Roger Townsend, Ronald J. address HL & P's cross-points in which HL & P asks only for Palmer, Ben Taylor, Jeff Dykes, Jeffrey S. Wolff, Houston, affirmance. We affirm the trial court's judgment. Carrington, Coleman, Sloman & Blumenthal, James E. Coleman, Marvin S. Sloman, Dallas, Liddell, Sapp, Zivley, Hill & Laboon, John L. Hill, Jr., Roy Atwood, Houston, City of Austin, Iris J. Jones, Acting City Atty., John T. Gooding FACTUAL HISTORY II, Mark G. Yudof, Austin, for appellant. The Lower Colorado River Authority (LCRA), Central Graves, Dougherty, Hearon & Moody, Robert J. Hearon, Jr., Power & Light (CP & L), the City of San Antonio (San Thomas B. Hudson, Jr., Matthew G. Dore, Michael Diehl, Antonio), Austin, and HL & P all belong to the South Selden W. Bobbitt, Austin, Baker & Botts, Finis E. Cowan, J. Texas Interconnected Systems. Formed in the 1940's, this Gregory Copeland, Houston, Baker & Botts, Joe R. Greenhill, interconnected group provides for the sharing of electricity Minton, Burton, Foster & Collins, Roy Q. Minton, Martha S. in emergencies and the staggered building of additional units Dickie, Austin, for appellees. to the individual systems to take advantage of each other's generation powers. On July 14, 1971, the group met and Before THOMAS, KINKEADE and OVARD, JJ. discussed for the first time the possibility of building a jointly owned nuclear power plant.

OPINION On December 14, 1971, all of the participants in this interconnected entered into a preliminary agreement to share KINKEADE, Justice. the costs of studies to determine the feasibility of licensing,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

constructing, and operating a jointly owned two-unit nuclear As project manager, HL & P's responsibility included powered electric generating plant. The group formed a study hiring an Architect/Engineer(A/E)-constructor to design and committee, which employed the Nuclear Utilities Systems build the plant. In June 1972, after an allegedly intensive Corporation to conduct feasibility studies. Upon completion investigation, HL & P tentatively recommended Brown of these feasibility studies, each participant would decide & Root to the study committee for the position of A/E- whether to agree to participate and build the South Texas constructor on the project. Before making a final commitment Project (the project). to hire Brown & Root, however, HL & P wanted to further test Brown & Root's capabilities by having it do additional site- In its report presented to the study committee on January study work for the project and assist *779 in developing the 13, 1972, Nuclear Utilities Systems estimated that it would specifications for the project's nuclear steam supply system. take twenty-two staff members of HL & P to handle the The steam supply system takes the steam produced by the project and estimated the cost of the project at $902 million heat from the nuclear reactor and transfers it to the turbine for both units. The report also projected October 1, 1980, as generator, which in turn rotates and produces electricity. the completion date for unit one and March 1, 1982, for unit two. Having tentatively decided, after receiving this report, On June 11, 1974, after Brown & Root completed these to build a jointly owned nuclear power plant and wanting to tasks to all of the participants' satisfaction, HL & P and avoid delays in proceeding with preliminary work pending Brown & Root signed a contract in which Brown & Root completion and execution of a participation agreement, all agreed to act as the A/E-constructor for the project. Brown of the participants entered into an interim agreement on & Root contracted for a fixed profit, or “cost plus” basis, June 15, 1972. In this agreement, the participants chose and the contract required it to complete ninety percent of the HL & P as the project manager. HL & P agreed to serve total engineering work before starting construction. All of as the project manager without compensation, except for the participants previously had employed Brown & Root to the reimbursement of project-related expenses, including perform various construction projects and were satisfied with overhead. In the construction of a nuclear power plant, its work. They also knew that Brown & Root had no previous regulations require the project manager to act as licensee nuclear experience and that this was the first nuclear power and to represent the project before the Nuclear Regulatory plant Brown & Root had contracted to design and build. Commission (NRC). Brown & Root's responsibilities as A/E-constructor included In September 1972, LCRA and Austin decided not to aiding HL & P in evaluating and selecting the steam participate in the project. On September 6, 1972, LCRA supply system unit for the project. At the July 13, 1973 authorities passed a resolution not to participate in the project management committee meeting, HL & P discussed in detail because they felt that nuclear power plants were still in the its and Brown & Root's bid analyses and recommended experimental stage and that the economics of such plants the selection of the Westinghouse 3800 unit based on were questionable. Austin chose not to participate because its Westinghouse's final contract. The participants accepted voters did not approve the bonds for the project. HL & P's recommendation and signed a contract with Westinghouse in 1974. On July 1, 1973, San Antonio, CP & L, and HL & P executed the participation agreement, which provided for the joint licensing, construction, operation, and maintenance of Austin's Entry into the Project the project. Each participant owned an undivided interest as follows: San Antonio, thirty percent (30%); CP & L, thirty In late 1972 and early 1973, Austin began experiencing percent (30%); and HL & P, forty percent (40%). Under the problems with fuel availability. Austin relied entirely on participation agreement, the owners agreed to share all costs natural gas for its electricity generation. On May 24, 1973, proportionately. The agreement provided for a management the Austin City Council received a report from the mayor's committee, composed of an officer or general manager from Energy Study Commission, which recommended that Austin each participant, and a project manager. The agreement also participate in a joint venture for the development of coal or provided that the project manager could be removed by a lignite power or a joint venture for a nuclear power plant. It simple majority vote. did not specifically recommend that Austin participate in the project.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

In a November 1973 bond election, Austin voters approved Construction of the Project $161 million for Austin to participate in the project. On December 14, 1973, Austin's representative, R.L. Hancock, In January 1973, the project participants agreed on the final began attending the management committee meetings. At that site selection in Matagorda County, just outside of Bay City, meeting, he received all the back copies of the management Texas. CP & L purchased the property, and, in December committee's meeting minutes. Austin never asked about the 1973, Brown & Root submitted its first cost and schedule contents of the previous meeting minutes or for any other estimate for the project. In May 1974, HL & P submitted the documents before signing the participation agreement. On preliminary safety analysis report to the NRC. This ended the December 21, 1973, Austin joined the other participants in the preliminary design phase. HL & P then turned its attention project by executing the first amendment to the participation toward getting the limited work authorization, which HL & P agreement. With the execution of the amendment, Austin needed in order to obtain a construction permit. became a sixteen percent undivided interest owner with the three other cotenants. The entry of Austin into the project In June 1975, Brown & Root issued a revised preliminary reapportioned the other participants' undivided interests as construction cost estimate. This estimate projected an follows: San Antonio, 28%; CP & L, 25.2%; and HL & P, increase of costs from $1 billion to $1.27 billion. Concerned 30.8%. about this estimate, HL & P subjected Brown & Root to a thorough audit of its overall administration and management At the time Austin entered the project, it knew that (1) the of the project. This audit identified many concerns as to participants had chosen HL & P to act as project manager and Brown & Root's performance, including whether it could that HL & P's only involvement with nuclear power plants meet the scheduled operating dates. Although HL & P told was its recent experience with its Allens Creek project, (2) Brown & Root of its concerns at that time, it did not inform Brown & Root had signed a letter of intent to act as the A/E- the management committee of its discoveries. On August constructor on a “cost plus” basis, and (3) the size of the steam 4, 1975, HL & P sent a letter to the participants informing supply system had been increased from 1150 megawatts to them that Brown & Root had not properly validated the cost 1250 megawatts. Before entering the participation agreement, estimate and expressed concern that the cost estimate was Austin made no inquiry into the selection process used in incorrect and needed modification. choosing the steam supply system, the budget, or Brown & Root's technical capability to perform the job. Austin asked In September 1975, pursuant to the limited work only about the status of the contract with Brown & Root. authorization permit received in August 1975, Brown & Root began clearing the plant site and performing other Between 1974 and 1979, the entire nuclear power industry preliminary non-safety-related construction. After satisfying changed. In 1974, Congress separated promotion of nuclear the NRC's requirements, the project received its construction power from its regulation with the creation of the NRC. permit, which allowed Brown & Root to begin safety-related Once the NRC took over the regulatory function, safety construction in December 1975, ten days ahead of schedule. requirements increased significantly. Between 1975 and In early 1976, in response to Brown & Root's complaints 1979, the NRC issued new regulations about every two about Westinghouse's failure to produce design documents on weeks. These regulations were partly in response to a 1975 time, HL & P hired an engineering consultant to determine fire that struck the Brown's Ferry nuclear plant in Alabama how Westinghouse's many design changes to its 3800 unit and the March 28, 1979 accident that occurred at the Three affected the schedule. The audit showed that the changes had Mile Island nuclear plant in Pennsylvania. As a result of affected the schedule. HL & P shared the results of this audit *780 a series of investigations of the Three Mile Island with Westinghouse but not with the management committee. accident, the NRC toughened its enforcement of regulations and regulatory guides at all nuclear plants. The NRC stopped all licensing reviews, shut down all plants with reactors similar to those at Three Mile Island for a period of time, and 1976 Decision to Start Safety–Related Construction more rigidly interpreted its regulations. In 1971, based on the performance of A/E-constructors on other nuclear projects, Brown & Root estimated that it would take a total of one million engineering man-hours to complete

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

the project's engineering work. By September, 22, 1975, this and schedule estimate; and (3) project organization, including number had increased to almost 2 million, sixty percent of policy and procedure manuals. which Brown & Root had already used. At the March 1976 management committee meeting, Brown & Root represented HL & P determined that the draft report furnished enough that it had completed this percentage. The project, however, information to correct the problems and directed Management ultimately required fifteen to twenty million engineering Analysis not to prepare a final report, though it felt that man-hours. Therefore, in hindsight, Brown & Root actually some of the information in the draft report was inaccurate. had completed less than eight percent of the total engineering On June 10, 1977, HL & P gave an oral report to the work eventually performed on the project. management committee of Management Analysis's findings and the major items that HL & P thought it needed to pursue At each monthly management committee meeting, HL & with corrective action. None of the committee members P provided the participants with (1) a monthly progress requested a copy of the written report. In response to the report, which included an engineering progress report, (2) a report, HL & P undertook several actions to carry out construction progress report, and (3) an executive summary Management Analysis's recommendations. Also in response report. These reports visually showed which items were on or to the report, the management committee formed a task force behind schedule and provided a written explanation. composed of people from Brown & Root, HL & P, and Management Analysis to develop a realistic cost and schedule At the March 1976 management committee meeting, Brown estimate. & Root reported that its engineering and construction were both on schedule. When asked whether its engineering In September 1978, the task force presented an interim report, could support the construction schedule, Brown & Root's which added eighteen months to the schedule and estimated representative responded, “Hell, yes.” After receiving this the final cost at $2 billion. The task force further determined assurance from Brown & Root, the management committee that significant cost and schedule increases were necessary voted to let safety-related construction begin. As noted and that it needed six additional months to develop a more earlier, Brown & Root already had started construction under definitive estimate. HL & P sent Austin a copy of this report. a limited work authorization *781 in September 1975. In November 1978, HL & P met with Austin's mayor, its It already had dug the hole for the reactor containment city council, assistants, and staff, and its Citizens' Electric building, had started placing rebar, and had poured some Utility Commission at the airport in Houston to provide them nonpermanent structural concrete. In April 1976, Brown & with an update on the project. HL & P allegedly tried to Root began safety-related construction, which meant that it answer questions and make Austin's representatives aware started pouring the concrete for the permanent structures. of the uncertain status of the estimates. Later, newspaper articles appeared in Austin newspapers discussing whether Austin's management committee representative had kept the city council sufficiently informed about the problems at the 1977 Management Analysis Company Audit project. In August 1979, HL & P presented the task force's The project remained close to schedule for the next year. new, more definitive “baseline” cost estimate of $2.7 billion In 1977, however, Brown & Root fell behind the original to the management committee. The committee, however, did schedule set for the project. In response, HL & P hired the not adopt the estimate until May 1980. Management Analysis Company, a managing consultant that advises utilities, pipeline companies, suppliers, A/Es, and constructors on financial planning matters as well as project 1980 NRC Show Cause Order. construction and operations management. HL & P asked Management Analysis to perform an evaluation and audit of The NRC requires the licensee of a nuclear power plant HL & P's project management organization and to identify to set up and execute a quality assurance program. Quality problems that could critically impact the achievement of the assurance includes all those planned and systematic actions project. Management Analysis presented its findings in a necessary to provide adequate confidence that a structural draft report to HL & P in June 1977. The report identified system or component will perform satisfactorily in service. three major concerns: (1) project procurement; (2) the cost Periodically, the NRC's inspection force looks at a project's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

construction activity records to determine whether that project eventually peaked at 600, an increase of 578 personnel project is meeting the NRC's quality assurance requirements. over the original study estimate of 22.

Between October 10, 1979 and February 7, 1980, the NRC investigated the project. The NRC determined that Brown & PROCEDURAL HISTORY Root had not conducted certain quality assurance activities in compliance with the NRC's requirements. Although the In December 1981, the participants sued Brown & Root. They deficiencies primarily resulted from Brown & Root's failure alleged that Brown & Root (1) was not qualified, (2) had to carry out an effective quality assurance program, the NRC breached its construction contract calling for performance to held *782 HL & P, as the project manager and licensee, the highest standards, (3) had a deficient quality assurance responsible. The NRC served a notice of violation, imposed program, and (4) had lied when it told the management a $100,000 civil fine, and issued a show cause order on committee that Brown & Root was ready to begin safety- HL & P. The show cause order outlined the actions that related construction in April 1976. The participants recovered HL & P needed to take to convince the NRC to allow $750 million. the project's safety-related construction activities to continue uninterrupted. Although HL & P felt that several of the NRC's Austin then brought this suit against HL & P to recover its findings were inaccurate, it paid the fine without objection so sixteen percent share of the cost overruns. Austin alleged it that could save money in the long run, continue the plant's breach of contract, fraud, and DTPA violations. Austin construction, and maintain good relations with the NRC. limited its complaints to the events that occurred between 1973 and 1981 while Brown & Root was the A/E-constructor on the project and during which the participants spent $1.78 Termination of Brown & Root as the A/E–Constructor billion. The trial court allowed the parties to use the discovery obtained in the earlier Brown & Root litigation. In September 1981, after Brown & Root reported that it expected to progress toward the completion date at a rate Austin based its contract claims on two alternate theories. of only 0.5% per month for the next eighteen months, the First, Austin asserted that, if HL & P had told the management management committee decided to remove Brown & Root committee in April 1976 that Brown & Root's engineering as the A/E. In September 1981, Bechtel replaced Brown & was inadequate to support construction at that time, the Root as the A/E. After Brown & Root refused to remain in committee would have voted to delay construction to allow the limited capacity of constructor, HL & P replaced it in that engineering to catch up and the plant could have been built capacity with Ebasco. At the time that Brown & Root left the for $3.2 billion. Second, Austin asserted that if HL & P project, the participants had spent $1.78 billion, $1 billion of had provided more information in 1978, the construction which was accounted for by equipment and materials. When of the plant would have been deferred for a year and the Bechtel took over, it presented a new cost estimate of $5.5 plant could still have been built for $3.2 billion. HL & P billion to complete the project. After taking over for Brown defended by asserting that (1) the information that it allegedly & Root, Bechtel's only major rework was to move the pipes withheld was frequently not information in the usual sense, coming from the cooling pond. To keep track of the cost of but only hindsight opinions or speculations or unproved any rework, repairs, or regulatory charges that might have allegations from the Brown & Root litigation, (2) Austin resulted from Brown & Root's mistakes, Bechtel set up a provided no causal link between any failure of HL & P to special account. Bechtel charged a total of $250 million to provide information and any increase in the project's costs, (3) that account. the $3.2 billion estimate was not attainable in any event, and (4) the project's actual cost and schedule was entirely *783 Between 1981 and 1988, Bechtel completed construction of reasonable and could not have been improved upon even if the project. Unit one became operational in August 1988, and further information had been provided. unit two became operational in June 1989. The final cost of the project was about $6.013 billion, an excess of $5 billion Before trial, the parties filed numerous pretrial motions. over the original $902 million Nuclear Utilities Systems study Disposition of some of the motions required the court estimate. The number of HL & P staff needed to complete the to interpret the participation agreement. In opinions accompanying its rulings on these motions, the trial court

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held that under the agreement the project's management v. Cox, 701 S.W.2d 677, 686 (Tex.App.—Dallas 1985, writ lay with the management committee and that HL & P as ref'd n.r.e.). The court, however, must liberally construe the project manager had the duty to supply information to the pleading attacked and accept as true all material factual management committee on major matters and on significant propositions alleged and all factual statements reasonably factors affecting the project's cost and schedule. Based on inferred from the allegations. Id. This Court will not disturb one of these opinions, the court sustained HL & P's special the trial court's rulings absent an abuse of discretion. Bader, exceptions to Austin's mismanagement claims that HL & 701 S.W.2d at 686. P (1) had breached provisions of the Brown & Root and Westinghouse contracts, (2) had not exercised reasonable HL & P specially excepted to Austin's fifth amended petition skill and care, (3) had breached fiduciary duties, and (4) had and moved to strike Austin's mismanagement claims that failed to perform as a prudent utility manager and struck HL & P (1) did not exercise reasonable skill and care in those causes of action. During the trial, Austin asked the court the performance of its obligations under the participation to reconsider its sustaining of HL & P's special exceptions agreement, (2) breached fiduciary duties, and (3) did not to Austin's mismanagement claims. The court overruled perform as a prudent utility manager. The trial court Austin's motion and issued another opinion standing by its struck Austin's mismanagement claims based on the court's earlier interpretations of the participation agreement. construction of the participation agreement.

The court's jury charge included questions as to breach of [4] [5] [6] [7] On appeal, Austin does not argue that the contract, fraudulent nondisclosure, and DTPA violations. The participation agreement was ambiguous. When no ambiguity jury found that HL & P did not supply the owners with all exists, the trial court construes the contract as a matter of law. of the information required under the participation agreement Westwind Exploration v. Homestate Sav. Ass'n, 696 S.W.2d but that Austin incurred no additional costs on the project as a 378, 381 (Tex.1985). To determine the contract's meaning, result of HL & P's failure to furnish the required information. the court considers the wording of the instrument in light of As to fraud, the jury found that a relationship of trust and the surrounding circumstances at the time the parties entered confidence existed between Austin and HL & P. The jury also into it and applies the pertinent rules of construction. *784 found that HL & P did not fail to disclose specified matters City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d with the intent to induce Austin to enter the participation 515, 518 (Tex.1968). The court gives effect to the parties' agreement. As to the alleged DTPA violations, the jury found intentions as expressed in the instrument. Gracia v. RC Cola– none occurred. Based on the jury's findings, the trial court 7–Up Bottling Co., 667 S.W.2d 517, 520 (Tex.1984). The entered a take-nothing judgment in HL & P's favor. parties' objective, not subjective, intent controls. Pinehurst, 432 S.W.2d at 518; Dallas Bank & Trust Co. v. Frigiking, Inc., 692 S.W.2d 163, 166 (Tex.App.—Dallas 1985, writ ref'd n.r.e.). DUTY OF IMPLIED SKILL AND CARE

In its first point of error, Austin contends that the trial [8] [9] Implied terms arise from the parties' presumed court erred when it sustained HL & P's special exceptions intentions as gathered from the instrument as a whole. and struck Austin's cause of action for HL & P's breach Summers v. Consolidated Capital Special Trust, 783 S.W.2d of its duty implied in law to perform with skill and care 580, 583 (Tex.1989); Danciger Oil & Ref. Co. v. Powell, its obligations as project manager under the participation 137 Tex. 484, 490, 154 S.W.2d 632, 635 (1941); Ingram agreement. Austin argues that the trial court misconstrued the Freezers v. Atchison, T. & S.F. Ry., 464 S.W.2d 915, 919 participation agreement when it found that the agreement did (Tex.Civ.App.—Dallas 1971, writ ref'd n.r.e.). It must appear not impose this duty. For the reasons discussed below, we either that the implied terms were so clearly within the parties' overrule Austin's first point of error. contemplation that they thought it unnecessary to express them or appear that it is necessary to infer the terms to carry out the contract's full purpose. Danciger, 154 S.W.2d at 635; Ingram, 464 S.W.2d at 919. Standard of Review

[1] [2] [3] The trial court has broad discretion in hearing, construing, and sustaining special exceptions. Bader

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this implied duty exists in every contract regardless of the parties' intentions. After a review of the whole contract, it Existence of the Duty in Every Contract is evident that the parties intended in this contract to place [10] Austin argues that the trial court misconstrued the ultimate control of the project in an independent management participation agreement because the duty of skill and care is committee and that HL & P's duty to perform with skill implied in every contract regardless of the parties' intentions. and care attached only to HL & P's duty to provide material To support this proposition, Austin relies on Coulson v. information to that management committee. Lake LBJ Municipal Utility District, 734 S.W.2d 649, 651 (Tex.1987); Montgomery Ward & Co. v. Scharrenbeck, 146 In Coulson, an engineer contracted with the defendant to Tex. 153, 157, 204 S.W.2d 508, 510 (1947); and Westbrook prepare plans and specifications to provide the defendant with v. Watts, 268 S.W.2d 694, 697 (Tex.Civ.App.—Waco 1954, utilities. The engineer prepared the plans and specifications, writ ref'd n.r.e.). Austin relies on Public Service Enterprise but the defendant refused to pay him. In its response Group, Inc. v. Philadelphia Electric Co., 722 F.Supp. 184, to the engineer's subsequent suit, the defendant alleged 209 (D.N.J.1989) (PECO ), to further argue that this implied that the plans “were not prepared in a good and *785 duty applies to agreements to manage nuclear power plants. workmanlike manner and do not meet the standards of HL & P responds that a duty of skill and care exists in the reasonable engineering practice.” Coulson, 734 S.W.2d at participation agreement only if the parties intended to include 650. The parties asked the court to decide which party had it. the burden to prove negligent performance. The court held that an engineer was entitled to a presumption that the work Austin misplaces its reliance on Scharrenbeck, Coulson, he performed was good and workmanlike and not negligently Westbrook, and PECO. None of these cases: done when he proved compliance with the express terms of his professional contract. In relation to this issue, the court (1) involve an agreement among participants to share cited the Scharrenbeck holding “that the common law duty to expenses, perform with skill and care accompanies every contract.” Id. at 651. The court, however, did not hold that an implied duty (2) involve a duty by the managing participant to provide existed regardless of the parties' intentions. In Coulson, the material information to the other cotenants, engineer expected compensation, and there is no indication that, under the contract, the defendant had the right to review (3) involve a management committee with budget and the engineer's work. Here, HL & P received no compensation manpower control and the authority to replace the for its services, and the management committee reserved the manager by a simple majority vote, or right to review HL & P's work and to remove it as project (4) imply a duty to perform with reasonable skill and care manager. where the parties expressed otherwise. In Westbrook, the court was asked to decide the correctness of In Scharrenbeck, Montgomery Ward agreed to repair a water a jury-charge definition of “good and workmanlike manner,” heater. After making the repairs, the repairman's failure to an express term in the contract. In relation to that issue, the check the flue caused a fire that destroyed Scharrenbeck's court stated, “[t]here is the general requirement applicable to home. Scharrenbeck sued for negligence, and Montgomery all contracts where one is required to perform a service that it Ward asserted the absence of any duty owed to Scharrenbeck. will be performed with reasonable care or skill.” Westbrook, The court held “[a]ccompanying every contract is a common 268 S.W.2d at 697. The court, however, was not asked to law duty to perform with care, skill, reasonable expedience and did not decide whether this duty existed regardless of the and faithfulness the thing agreed to be done.” Scharrenbeck, parties' intentions. 204 S.W.2d at 510 (emphasis added). The court appears to hold that a duty to perform with skill and care attaches only In PECO, the nuclear power plant owners sued PECO, to the performance of the acts the parties agreed to perform. the operating owner, for breach of contract, negligence, This requires the trial court to make a determination of the misrepresentation, and fraud in connection with the NRC's parties' presumed intentions as gathered from the instrument shutdown of the plant in 1987, after the NRC was informed as a whole. Austin fails to cite to any authority, and we that operators at the plant were routinely sleeping on duty. can find none, that interprets Scharrenbeck to mean that PECO, 722 F.Supp. at 186, 187. Although PECO received

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several warnings from the NRC in 1985 that the plant was [11] Austin next contends that the trial court misconstrued not up to industry standards, PECO never passed along the participation agreement by rejecting Austin's argument these criticisms to the other owners. Id. at 188–89. The that the agreement meant to deviate from the stricter joint operating agreement among the owners required PECO reasonable skill and care standard only in the two limited to “operate and maintain” the plant as an “independent instances where it expressly specified the lower “best contractor” responsible for the results obtained, and, in the judgment” standard. Austin argues that only when the parties agreement, PECO pledged to operate and maintain the station have expressly rejected an “ordinary prudence” standard in for the owners as if it were owned solely by PECO. Id. favor of a “best judgment” standard will the courts remove the at 186. PECO agreed to provide these services without “prudent conduct” or “reasonable care” standard and impose making a profit. Id. at 197. The agreement also established a “best judgment” standard. Austin relies on Anbeck Co. v. an owners' committee to coordinate the administration of all Zapata Corp., 641 S.W.2d 608 (Tex.App.—Houston [14th plant operation and maintenance matters and to review the Dist.] 1982, writ ref'd n.r.e.), to support its contention. plant's general performance and operations. The agreement further required PECO to provide a daily status report to the Austin misplaces its reliance on Anbeck. In Anbeck, the owners' committee. As the plant's licensed operator, PECO appellant argued that, because the parties' agreement gave the was responsible for the plant's safe operation and had a corporation the right to make all material decisions for the duty to follow the laws and regulations covering nuclear corporation's subsidiary, a corresponding legal duty to use power plants. One of those regulations required the constant “reasonable diligence” in its management of the subsidiary presence of a licensed or senior operator at the controls necessarily accompanied this right. Because the contract during the plant's operation. Id. at 188. The owners alleged did not expressly provide for this obligation, the court that PECO's misrepresentations about the plant's operation needed to determine whether the written contract implied a prevented them from acting to prevent the plant's shutdown. covenant that the corporation would manage the subsidiary with reasonable diligence and due care. Id. at 611. The court PECO moved to dismiss the owners' tort claims, alleging found that the agreement included covenants only that the that the owners' breach of contract action precluded their tort corporation would not use certain names in the corporation's cause of action. In determining whether the owners could subsidiary and that the corporation would use its best efforts maintain both causes of action, the court had to decide the to provide the subsidiary with up to $1,000,000 in working source of PECO's duty to refrain from the complained-of capital. The court held that the agreement's use of “best conduct. The court held that, given the nature of PECO's efforts” in one limited instance did not imply a general duty to contractual obligations to efficiently operate and maintain use reasonable skill and care. Anbeck, 641 S.W.2d at 613–14. the plant and to keep the owners informed of the plant's status, “the contract could certainly be interpreted under A similar situation existed here. The participation agreement Pennsylvania [law] to include an implied promise by PECO to required HL & P to make the day-to-day decisions for the render its services with reasonable skill and care.” Id. at 209. project. The participation agreement, however, only specified a standard of performance in two limited situations: Here, although the participation agreement imposed upon HL & P duties similar to those imposed in PECO, it did (1) Section 10.2.8 of the agreement required the project not provide HL & P with “independent contractor” status manager to: or specifically state that HL & P was responsible for the [f]ollow the practices and procedures which have been results obtained. Without these additional obligations, it does reviewed and approved by the Management Committee not appear necessary to infer a duty of reasonable skill and or, in the absence of such approved practices and care in the agreement, especially considering the agreement's procedures, which reflect the best judgment of the provision that allows the management *786 committee to Project Manager. remove HL & P with a simple majority vote. (2) Section 24.1 of the agreement provided:

Pending the resolution of any dispute by arbitration or “Best Judgment” Standard judicial proceedings, the Project Manager shall proceed with the Preconstruction Work, Construction Work,

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or Station Work in a manner consistent with this through some mismanagement. See Application of Gulf Participation Agreement and the Project Agreements State Utils. Co. for Authority to Change Rates, 14 and with the best judgment of the Project Manager.... Tex. PUC Bull. 1943, 2429 (1988) (interpreting §§ 2, 38, 39, and 41 of the Public Utility Regulatory Act, (Emphasis added.) Because the agreement did not expressly TEX.REV.CIV.STAT.ANN. art. 1446c (Vernon 1980 & provide for a reasonable skill and care standard as urged by Supp. 1992)). Austin, the court needed to determine whether the written contract implied such a covenant. Both of the cited provisions The evidence does not show that: involve situations in which HL & P would be acting without the supervision of the management committee. Under the (1) HL & P campaigned for or otherwise sought the job remaining provisions of the participation agreement, HL & P of project manager. Rather, the participants chose HL is subject to management committee supervision and review. & P after consideration of the Nuclear Utilities Systems We conclude, as did the trial court, that this limited use of the report, which recommended that HL & P act as project “best judgment” standard of performance does not necessarily manager for the first project and that one of the other imply a general duty to use reasonable skill and care under participants assume that duty for later projects, other parts of the contract. (2) HL & P negotiated or bargained for increased political clout as the purchasing agent for the project. Further, the participation agreement provided for the removal of the HL & P's Self–Interest project manager with a simple majority vote, or

[12] Austin also contends that the trial court misconstrued (3) HL & P received any additional compensation for the participation agreement by determining that, because of performing the duties of project manager. HL & P's status as part owner, it would be motivated by self-interest to perform well and that, therefore, a general duty to perform with reasonable skill and care need not be implied. Austin argues that HL & P's self-interest was not Mutual Right of Control a sufficient motivator because HL & P received additional [13] Austin additionally contends that the trial court erred forms of compensation that the other owners did not. Austin when it analogized business relationships to this case and asserts that HL & P (1) *787 charged the other owners $473 determined that an implied duty of skill and care did not apply million for its diverse contractual services, (2) benefitted in all contracts. Austin argues that the law of partnerships and economically by spreading its internal costs among the other joint ventures does not apply to this participation agreement owners, (3) benefitted politically by virtue of the economic because there was no mutual right of control. Austin relies muscle it enjoyed as purchasing agent and the employer of on State v. Houston Lighting & Power Co., 609 S.W.2d 263 several thousand workers, and (4) recouped its losses by (Tex.Civ.App.—Corpus Christi 1980, writ ref'd n.r.e.), to increasing its rate base. support its contention.

The evidence shows that: In Houston Lighting & Power Co., the parties asked the court (1) the participation agreement did not provide for the to decide whether the cities of Austin and San Antonio were project manager to receive compensation for its services. liable for ad valorem taxes on their undivided interests in the Rather, the other participants agreed to pay their same project and under the same participation agreement as proportionate share of the actual costs incurred by HL the one at issue in this lawsuit. Id. at 265. HL & P and CP & & P as determined by independent audits, which neither L had paid their share of the taxes. Austin and San Antonio Austin nor any of the other participants questioned, and refused to pay the taxes assessed against their interests in the properties comprising the project. The cities claimed an (2) HL & P could not simply pass along its cost increases exemption because their interests in the project were devoted to the public by increasing its rate base. To get a exclusively to public use. The State argued that the court rate base increase, HL & P must prove to the Texas for tax purposes should treat the project as a legal entity Public Utility Commission that its costs in building in the nature of a partnership or a joint venture, which is, the project were prudently incurred rather than incurred

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itself, liable for 100 percent of the taxes assessed against the [14] Austin further contends that the trial court misconstrued involved properties. the participation agreement because the management committee's powers are limited. Austin argues that the The court stated that a joint venture is like a partnership and participation agreement does not grant the management is usually limited to one enterprise. The essential elements of committee the power to exercise “general supervision” over a joint venture are (1) mutual right of control, (2) community the project manager. Austin relies on sections 4.25 and 10.2.4 of interest, (3) agreements to share profits as principals, and of the participation agreement for this proposition. (4) agreements to share losses, costs, and expenses. Id. at 267. The court, limiting its analysis solely to whether the Section 4.25, the definition portion of the agreement, provides participants agreed to share profits, determined that they did in part as follows: not and as a result that no partnership or joint venture existed and that the project was not liable for the assessment or PROJECT MANAGER: The payment of any taxes against the *788 project. Id. at 268. Participant responsible for the Contrary to Austin's assertion that the court in that case found planning, construction and operation that the participation agreement showed no mutual right of of the various components of the control, the court did not discuss that element of partnership. South Texas Project in accordance Further, the court specifically stated in its review of the facts with this Participation Agreement and that the “[m]anagement is by a committee made up of one the Project Agreements. representative from each participant.” Id. at 266. This finding This provision is a definition. It identifies the party with the refers to the management committee and implies a mutual responsibilities enumerated in section 10 of the agreement. right of control. This provision adds nothing to those responsibilities.

Because the participants did not agree to share profits as co- Section 10.2.4 of the agreement provides as follows: owners of the project, we agree with Austin that the project is neither a partnership nor a joint venture. We disagree, [The project manager shall] [p]rovide however, that the trial court's analogy to cases involving for the engineering, design, contract partnerships and joint ventures is inappropriate given Austin's preparation, purchasing, construction, contention that the duty to use reasonable skill and care is reconstruction, repair, retirement, imposed in all contracts. As illustrated by the cases relied replacement, supervision, training, upon by the trial court, 1 that duty is not imposed in every expediting, inspection, testing, start- instance. Those cases reveal that courts, in deciding not to up, protection, operation, maintenance impose such a duty upon partnerships and joint ventures, and accounting of, or with respect to, primarily rely on the partners' or joint venturers' mutual each component. right to control the business or their agreement to share losses, costs, and expenses. Although the participants in the *789 Austin relies on the “provide for” language in this instant case did not agree to share profits as co-owners of provision to make its assertion that the parties' intended the project, this element of a partnership or joint venture is to impose an implied duty of skill and care on HL & P's not pertinent to this analogy. The participants met all of the performance. Austin asserts that this language specifically other requirements of a partnership or joint venture: (1) a and expressly delegates to HL & P, as project manager, mutual right of control, (2) a community of interest, and (3) an the ability to control or to manage the matters pertaining agreement to share losses, costs, and expenses. The trial court, to engineering, design, purchasing, construction, quality therefore, appropriately analogized to those types of business assurance, selection of contractors, and operation of the relationships to show that an implied duty to use reasonable project. skill and care does not exist in every contract. The term “provide for” does not necessarily impose strict contract liability. See Sherman Simon Enters. v. Lorac Serv. Corp., 724 S.W.2d 13, 16 (Tex.1987). In Sherman Simon, The Management Committee's Powers the court held that an automobile rental agency satisfied an agreement to provide insurance coverage for one of

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its customers when it secured a policy from an insurance [15] [16] [17] An action in contract is for the breach of company. Id. Here, Austin introduced no evidence that shows a duty arising out of a contract, either express or implied. that the parties had the intent or contemplated that HL & P An action in tort is for a breach of a duty imposed by would design and/or construct the project itself. Accordingly, law. International Printing Pressmen & Assistants' Union HL & P fulfilled its obligations pursuant to section 10.2.4 v. Smith, 145 Tex. 399, 409, 198 S.W.2d 729, 735 (1947). when it contracted with Brown & Root and Westinghouse Where the plaintiff may not maintain a cause of action to perform those services as independent contractors. See without proving the contract's contents, and the action's gist Seaview Hosp., Inc. v. Medicenters of Am., Inc., 570 S.W.2d is the breach of the contract, whether by malfeasance or 35, 39–40 (Tex.Civ.App.—Corpus Christi 1978, no writ) nonfeasance, it is an action on the contract. Smith, 145 Tex. (distinguishing between a contract to “furnish” services and at 409, 198 S.W.2d at 735; Manzo v. Ford, 731 S.W.2d 673, a contract to “perform” services). 677 (Tex.App.—Houston [14th Dist.] 1987, no writ). This categorization of the claim is true though it is labeled an action Although the participation agreement does not specifically for negligent performance. Manzo, 731 S.W.2d at 677. state that the management committee has “general supervision” of the project, the agreement does specifically [18] Austin's action is for damages for HL & P's failure to provide that the management committee has the right to: perform its duties as project manager with reasonable skill and care, a duty Austin asserts is impliedly imposed on HL & (1) resolve disputes among the participants arising under P by the contract regardless of the parties' intention. The right the agreement (§ 9.3.5); for which Austin seeks redress arose by virtue of the parties' agreement. We conclude that Austin's action is founded upon (2) review and act upon the project manager's contract. See Smith, 145 Tex. at 410, 198 S.W.2d at 736. recommendations concerning:

a. the utilization of employees (§ 9.3.6.2), Section 21 of the participation agreement, the tortious conduct exculpatory clause, provides in pertinent part: b. the annual budget for capital expenditures (§ 9.3.6.3), *790 Participants shall have no c. the operating practices and procedures (§ 9.3.6.11); remedies against another Participant for tortious conduct arising out of the (3) remove the project manager with a simple majority vote ownership of the South Texas Project, (§ 25); and or any portion thereof, or out of Preconstruction Work, Construction (4) approve all agreements (§ 31). Work or Station Work except when the Based on these contract provisions, we conclude that the claim results from Willful Action. management committee's powers are not limited and that Because this exculpatory clause precludes only actions based the management committee, not HL & P, maintains ultimate on tortious conduct, it is inapplicable in this situation. control over the project.

Duty of Implied Skill and Care Summation Exculpatory Clause Because (1) the duty of reasonable care and skill is not implied Austin contends that the trial court in its first opinion in all contracts, (2) the agreement does not provide HL & P misconstrued the participation agreement because the with independent contractor status or state that HL & P is participation agreement's exculpatory clause does not absolve responsible for results obtained, (3) it is not necessary to infer HL & P of its implied duty to use skill and care. Austin the duty to carry out the contract's full purpose, (4) the limited argues that its claim against HL & P for mismanagement is use of “best judgment” does not necessarily imply a general a contract claim, not a claim for “tortious conduct.” Austin duty of reasonable skill and care, (5) HL & P is motivated further argues that the exculpatory clause is too vague to be by self-interest, and (6) the management committee maintains enforceable. ultimate control over the project, the trial court did not err when it sustained HL & P's special exceptions and struck

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Austin's cause of action alleging that HL & P had breached [19] [20] [21] To get a reversal of judgment based on its duty implied in law to perform its obligations as project the trial court's error in admitting or excluding evidence, manager under the participation agreement with skill and the complaining party must show that (1) the trial court care. We overrule Austin's first point of error. committed an error and (2) the error was reasonably calculated to cause and probably did cause rendition of an improper verdict. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). Further, the party must show HEARSAY that the whole case turned on the admission of the unexcluded In its fourth point of error, Austin contends that the trial evidence. Shenandoah Assocs. v. J & K Properties, 741 court erred when it overruled Austin's hearsay objection to the S.W.2d 470, 490 (Tex.App.—Dallas 1987, writ denied). admission of three newspaper articles. Austin argues that: When a trial court gives an instruction that limits the purpose for which the jury can consider the evidence, this (1) the articles were relevant only if the statements made Court must assume that the jury properly followed the trial by the officials were true, court's *791 instruction. Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982). The (2) the articles allowed the jury to infer that the reporter erroneous admission of evidence that is merely cumulative believed the statements, which belief may have been of properly admitted evidence is harmless error. McInnes v. erroneous, Yamaha Motor Corp., 673 S.W.2d 185, 188 (Tex.1984), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985). (3) HL & P's repeated references to and quotations from the To make this determination, this Court must review the entire articles, during jury argument, established harm and caused record. Gee, 765 S.W.2d at 396. the probable rendition of an improper verdict.

[22] [23] [24] [25] Hearsay is an out-of-court statement HL & P contends that it offered the newspaper articles to show offered as evidence to prove the truth of the matter that the information Austin denied receiving was available in asserted. TEX.R.CIV.EVID. 801(d); Matter of Honsaker, the city's newspapers at the relevant times. HL & P claims that 539 S.W.2d 198, 201 (Tex.Civ.App.—Dallas 1976, writ ref'd the articles were not hearsay because they were admitted to n.r.e.). Generally, Texas courts consider newspaper articles show that Austin was on notice about the project's problems inadmissible hearsay. Deramus v. Thornton, 160 Tex. 494, and to show the state of the public's knowledge in the City 505, 333 S.W.2d 824, 831 (1960); Sherrill v. Estate of of Austin, not to prove the truth of the matters asserted in Plumley, 514 S.W.2d 286, 290 (Tex.Civ.App.—Houston [1st the articles. HL & P argues that (1) during voir dire and in Dist.] 1974, writ ref'd n.r.e.); Hearn v. Covington, 22 S.W.2d its opening statement, Austin told the jury that it intended to 1073, 1073 (Tex.Civ.App.—Beaumont 1929, no writ). When offer evidence about the state of public knowledge in the city, a party offers a statement simply to show that it was made (2) Austin fulfilled this promise through the presentation of rather than to show its truth or falsity, however, the hearsay many witnesses who claimed not to have known information rule does not bar its admission. Pope v. Darcey, 667 S.W.2d about the project and who testified that had HL & P made 270, 273 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd the information available they would have acted differently, n.r.e.). Further, newspaper articles not offered for the truth (3) HL & P used two of the articles to put in context Austin's of the matters asserted but used merely to show notice of mayor's testimony about the statements she made to the those matters are not hearsay. See Hiram v. United States, Austin public following the airport meeting, and (4) any error 354 F.2d 4, 7 (9th Cir.1965). The hearsay rule also does not in these articles' admission was harmless because the articles' bar the admissibility of news reports used to show public contents were cumulative of other evidence. perceptions of the subject matter covered by the articles. See Tejas Gas Corp. v. Herrin, 705 S.W.2d 177, 180–81 For the reasons discussed below, we overrule Austin's fourth (Tex.App.—Texarkana 1985), rev'd on other grounds, 716 point of error. S.W.2d 45 (Tex.1986); Lone Star Gas Co. v. Smith 405 S.W.2d 238, 239 (Tex.Civ.App.—Waco 1966, no writ); King v. City of Dallas, 374 S.W.2d 707, 711–12 (Tex.Civ.App.— Standard of Review Dallas 1964, writ ref'd n.r.e.); see also Democratic Party v. National Conservative Political Action Comm., 578 F.Supp.

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797, 829 (E.D.Pa.1983), aff'd in part and rev'd in part on If the court committed error by allowing the introduction other grounds, 470 U.S. 480, 105 S.Ct. 1459, 84 L.Ed.2d 455 of this article, the error was harmless because this evidence (1985). merely was cumulative of evidence admitted afterward. McInnes, 673 S.W.2d at 188. HL & P later introduced and read, without objection, most of a memo Hancock sent Austin's city manager responding to his request for further “Nuclear woes muffled?” information on the November 30 article. Other than the quotations, the memo contained the same information as the AUSTIN AMERICAN article about the council's accusations. STATESMAN, November 30, 1978 Because the trial court limited the use of the article to show [26] HL & P first discussed the November 30, 1978 that the city council had made accusations against Hancock, newspaper article during the cross-examination of R.L. and we assume that the jury followed the court's instruction, Hancock, Austin's representative on the management the article was not barred by the hearsay rule and the trial committee. The article discussed various problems at the court did not err when it allowed the article's admission. If project and alleged that Hancock did not timely relay the the hearsay rule, however, did bar the article's admission, the information he received concerning those problems to the error was harmless because the evidence was cumulative of city council. The article included quotations from several other evidence admitted without objection. Austin City Council members, listed the problems, and included Hancock's explanations for why he had limited the information he relayed concerning those problems. “Council unimpressed by report Austin objected to this article's introduction, arguing that after HL & P briefing on STNP” the headline and the quotations contained in the article were hearsay. HL & P responded that it was introducing the article DAILY TEXAN, November 21, 1978 only to show that accusations were made against Hancock and the gravity of those accusations, not to show that any of the [27] HL & P introduced the November 21, 1978 newspaper statements in the article were in fact accurate. The court at first article during its cross-examination of Carole McClellan overruled the objection, but later sustained a similar objection Rylander, Austin's mayor in 1978. The article discussed the and instructed the jury that the statements in the article, made briefing that Austin City Council members received from HL by persons other than Hancock, were not admitted for the & P at the meeting at the airport in Houston a few days truth of the statements, but only to show that the statements earlier. The article included quotations from Rylander and were made and that the matter had the attention of the city other council members and summarized HL & P's statements council. HL & P questioned Hancock further about whether at the airport meeting. Further, it conveyed that, despite HL the article made accusations that he did not inform Austin's & P's statements at the airport meeting, Austin's council City Council about the problems at the project. HL & P did members continued to have questions about the project's cost not refer to or question Hancock about any specific quotation and schedule. in the article. HL & P introduced the article in response to Rylander's HL & P stated that its intention in introducing the article statement that she would have to look specifically at the was to show that Austin's City Council had made accusations clippings from that time to see what she had said to the against Hancock and not to show the article's truth or falsity. public upon her return from the meeting in Houston. Austin The hearsay rule, therefore, did not bar the article's admission. immediately objected to the article's admission on hearsay Pope, 667 S.W.2d at 273. Further, the trial court instructed the grounds. The trial court sustained the objection and instructed jury to consider the article only for that purpose. We assume the jury that the newspaper article was not admitted for the that the jury followed the instruction. *792 Brookhollow, truth of any matters stated in it, but only for the purpose 642 S.W.2d at 167. Austin points to no evidence showing that of showing what the discussion was in the City of Austin the jury failed to follow the court's limiting instruction. at the time the account was published. HL & P continued questioning Rylander about specific quotes she had allegedly made in the article and read a portion of the article to the

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jury. Austin again objected complaining, “[T]his has nothing to do with any discussion that's taken place in Austin.” The Q: Still having troubles between the City Council and the trial court overruled Austin's objection. HL & P continued representative to the management committee on the City questioning Rylander, limiting itself to the portion of the Council complaining that they never got the word on article read to the jury and Rylander's quotations. In its what was going on down at the South Texas Project; is jury argument, HL & P repeated some of Rylander's alleged that correct, Mayor? quotations from the article. HL & P made no reference to A: I was not there. I can't make an assumption that this quotations made by the other city council members. reporter accurately portrayed what happened.

HL & P introduced the November 21 newspaper article Q: Well, right next to this picture of Mr. Hancock, Mr. to show what Austin's citizens were reading at that time Hancock is quoted as saying, R.L. Hancock says the City concerning the project. The hearsay rule, therefore, did not Manager's office should pass news to the council. Is that bar the article's admission. See Tejas Gas Corp., 705 S.W.2d right, sir? at 180–81. The trial court instructed the jury to consider the article only for that purpose, and we assume the jury A: That's what that says. followed that instruction. Brookhollow, 642 S.W.2d at 167. HL & P asked no further questions concerning this article nor The evidence does not show that HL & P went beyond its made any further references to it. stated purpose or that the jury failed to follow the court's limiting instruction. Additionally, the article summarized HL When HL & P introduced the November 21 and 30, & P's statements at the airport meeting, a transcription of 1978 newspaper articles, Austin requested and received an which Austin introduced during its direct examination of instruction to the jury to consider those articles only for the Rylander. Because the trial court limited the use of the article limited purpose of showing what the discussion was in the to show what Austin's citizens were reading at the time, and City of Austin at the time the account was published. Austin we assume the jury followed that instruction, the article was did not request a limiting instruction either at the time HL & not barred by the hearsay rule and the trial court did not P introduced this newspaper article or at pretrial. err when it allowed the article's admission. If the court did err in allowing the introduction of this article, the error was When the jury should consider the tendered evidence for harmless since the evidence was cumulative of other evidence only one purpose, it is the opponent's burden to secure a admitted without objection. limiting instruction. Absent such a request, the admission of the evidence without limitation is not a ground for complaint on appeal. TEX.R.CIV.EVID. 105(a); Larson v. Cactus Util. *793 “City officials delayed telling Co., 730 S.W.2d 640, 642 (Tex.1987). council about Nuke troubles” Because Austin did not request a limiting instruction, it AUSTIN AMERICAN STATESMAN, January 31, 1982 waived its right to complain. Assuming that Austin did not waive its right to complain, any error was harmless. [28] HL & P introduced the January 31, 1982 newspaper There were two previous limiting instructions given with the article during its examination of Lee Cooke, Austin's mayor November 21 and 30 newspaper articles and the witness's at the time of trial and a former Austin City Council member. testimony accompanying the introduction of the article The article discussed the communication problems among questioned the article's accuracy. We hold that the lack of a Hancock, Austin's City Manager's office, and Austin's City limiting instruction did not amount to such a denial of Austin's Council. It included quotations from Hancock, Rylander, and rights as was reasonably calculated to cause and probably other Austin officials. did cause the rendition of an improper judgment in this case. TEX.R.APP.P. 81(b)(1). After HL & P read the article's headline to Cooke and commented that Hancock's picture accompanied the article, the following exchange occurred: Hearsay Summation

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The trial court admitted the November 21 and 30 newspaper Store No. 7441 v. Trotti, 677 S.W.2d 632, 636 (Tex.App.— articles for the limited purpose of showing that the statements Houston [1st Dist.] 1984), writ ref'd n.r.e. per curiam, 686 were made and for the limited purpose of showing the state of S.W.2d 593 (1985). To determine whether an alleged error in public knowledge in the City of Austin at the relevant times. the jury charge is reversible, we must consider the pleadings, Thus, the articles were not hearsay. When Austin did not the evidence presented, and the charge in its entirety. Island request a limiting instruction with the January 31 newspaper Recreational Dev. Corp. v. Republic of Tex. Sav., 710 article, it waived its right to complain about its admission in S.W.2d 551, 555 (Tex.1986). We will deem an alleged error its entirety. Alternatively, if Austin did not waive its right to reversible only if, when viewed in light of the totality of the complain, any error in admitting the article was harmless. circumstances, it amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably Because Austin waived its right to complain of the admission did cause rendition of an improper judgment. TEX.R.APP.P. of the January 31 newspaper article and because we assume 81(b)(1); Island Recreational Dev., 710 S.W.2d at 555; that the jury followed the trial court's instructions and Geotech Energy v. Gulf States Telecommunications & Info. appropriately limited its consideration of the remaining Sys., Inc., 788 S.W.2d 386, 390 (Tex.App.—Houston [14th articles, the hearsay rule did not bar the articles' admission. Dist.] 1990, no writ). Therefore, the trial court did not err in allowing the articles' admission into evidence. We overrule Austin's fourth point of error. HL & P's Contractual Duty to Make Recommendations

[32] In its second point of error, Austin contends that the *794 JURY CHARGE trial court erred when it refused to include section 10.2.7 of the participation agreement in the definition of HL & P's In its second and third points of error, Austin contends that an duties to inform. Austin argues that, under section 10.2.7, HL erroneous jury charge caused the jury to render an improper & P had a duty to make competent recommendations to the verdict. Austin argues that the trial court erred when it refused management committee. Austin asserts that it supported its to include (1) section 10.2.7 of the participation agreement request to include section 10.2.7 with written pleadings and in the definition of HL & P's duties to inform and (2) a proof that HL & P did not make competent recommendations “substantial factor” question or instruction in the causation concerning (1) the choice of a nuclear steam supply system, issue. (2) the selection of Brown & Root, and (3) the decision to start safety-related construction.

HL & P argues that jury question one dealt with whether HL Standard of Review & P provided information to the management committee and [29] [30] [31] Under the Texas Rules of Civil Procedure, that the duty to make recommendations did not fall within the the trial court must, whenever feasible, submit the cause participation agreement's definition of information. HL & P upon broad-form questions and must give proper instructions further argues that Austin never objected to the omission of and definitions to enable the jury to render a verdict. section 10.2.7 in the pretrial opinions listing the participation TEX.R.CIV.P. 277. Explanatory instructions are the tools that agreement sections imposing informational duties. aid the jury in rendering a just and proper verdict. The trial court should submit instructions only when it determines that The court limited its charge to those sections of the the instructions will help the jury to understand the meaning participation agreement that it determined mandated HL & and effect of the law and the presumption created thereby. P to provide information. The charge included the following Texaco Inc. v. Pennzoil Co., 729 S.W.2d 768, 819 (Tex.App. definition and instruction: —Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dismissed, ‘Information required by the Participation Agreement’ 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988). The means the information that HL & P was required to supply complaining party must tender to the court in writing a to the Participants by the following provisions of the substantially correct definition or instruction. TEX.R.CIV.P. Participation Agreement. 278. The trial court has wide discretion to determine the sufficiency of definitions and instructions. K–Mart Corp.

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Work and Station Work, or any phases 10.2 The Project Manager for all aspects of the South thereof. Texas Project, except the construction, operation, and maintenance of the Construction Power Line, shall: (Emphasis added.) Although section 10.2.7 states that the project manager shall make recommendations to the 10.2.3 Supply the Participants with copies of all studies management committee, we must read that section in made, license and *795 permit applications filed, and conjunction with section 9.3.6, which sets forth the licenses and permits obtained; management committee's responsibility concerning the recommendations. Section 9.3.6 further defines and limits 10.2.5 Promptly supply the Participants with the project manager's recommendation duties to the areas information on major matters and significant factors of insurance, employee utilization, budgets, and the making which affect construction and operating schedules; of policies and procedures for the plant's construction, 10.2.6 Provide the Management Committee and any maintenance, and operation. When sections 9.3.6 and 10.2.7 committee created by it with all necessary records are read together, it is clear that the language “but not and information pertaining to matters within its [the limited to” in section 10.2.7 refers back to section 9.3.6. The Management Committee's] designated responsibilities. first subsection under 9.3.6 specifically refers to insurance coverage. The remaining fifteen subsections define the other 10.2.10 Keep the Participants fully and promptly advised areas on which the management committee expected HL & P of material changes in conditions or other material to make recommendations. developments affecting the performance of its [HL & P's] responsibilities. Austin's proposed instruction implied a general duty by HL & P to make recommendations. The proposed instruction, In answering question 1, 2, and 3, you should consider only however, did not properly place HL & P's duty in context. HL & P's duty to supply the information required by the When section 10.2.7 is read in its entirety and in conjunction foregoing provisions of the Participation Agreement; do with section 9.3.6, we conclude that HL & P's duty to make not consider any other duties that HL & P may have had recommendations was limited to the sixteen specific areas set as project manager. forth in section 9.3.6. Austin's proposed instruction, therefore, would not have aided the jury in understanding HL & P's duty Austin requested that the trial court include a portion of to supply Austin with information or the law or in rendering section 10.2.7 as follows: a just and proper verdict. See Texaco, 729 S.W.2d at 819–20. 10.2.7 Prepare recommendations Because Austin's proposed instruction would not have aided covering the matters which are to the jury in understanding the law or in rendering its verdict, be reviewed and acted upon by the the trial court did not err in refusing to submit the instruction Management Committee. to the jury. We overrule Austin's second point of error.

The trial court refused Austin's request.

In its entirety section 10.2.7 reads as follows: “But For” v. “Substantial Factor” Causation

[33] In its third point of error, Austin contends that the trial 10.2.7 Prepare recommendations court erred in submitting the question on causation. Austin covering the matters which are to argues that the language “in reasonable probability” that the be reviewed and acted upon by trial court used in jury question two erroneously applied the Management Committee and any “but for” causation to the question of increased costs. Austin committee created by the Management asserts that the applicable burden of proof in contract cases Committee for the purpose of is “substantial factor” causation and that “but *796 for” reviewing such recommendations, causation requires a higher burden of proof. including, but not limited to, insurance coverages to be obtained during the To show liability for damages in a breach of contract case, periods covered by and with respect to the plaintiff must show that the defendant's breach was Preconstruction Work, Construction

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a “substantial factor” in causing the injury. 5 CORBIN, Austin's proposed instruction would not have aided the jury CORBIN ON CONTRACTS § 999 (1964). The plaintiff in understanding the law or in rendering its verdict, the trial need not show the proportionate fault of each wrongdoer. court did not err when it refused Austin's requested question White Budd Van Ness v. Major–Gladys Drive, 798 S.W.2d and instruction. We overrule Austin's third point of error. 805, 819–20 (Tex.App.—Beaumont 1990, writ dism'd), cert. denied, 502 U.S. 861, 112 S.Ct. 180, 116 L.Ed.2d 142 (1991); Hunt v. Ellisor & Tanner, Inc., 739 S.W.2d 933, 938 MOTION FOR NEW TRIAL (Tex.App.—Dallas 1987, writ denied). In its fifth and sixth points of error, Austin contends that the Question two of the court's jury charge read as follows: trial court erred when it overruled Austin's motion for new trial because the jury's findings that Austin did not incur any Were any costs incurred in the costs as a result of HL & P's failure to provide information and construction of [the project] that, that any deceptive trade practice or unconscionable conduct in reasonable probability, would not by HL & P did not adversely affect Austin are against the great have been incurred if HL & P had weight and preponderance of the evidence. Austin argues that furnished to the Participants all the (1) starting safety-related construction too soon caused cost information as and when required by overruns, (2) safety-related construction started too soon on the Participation Agreement? the project, (3) HL & P knew that the project was not ready The jury responded “No.” No definition or instruction to start safety-related construction in April 1976, (4) HL & concerning causation accompanied this question. P misinformed Austin about the project's readiness to start safety-related construction, and (5) HL & P's misinformation Austin requested that the trial court include the following caused cost overruns on the project that would otherwise not question in the jury charge: have been incurred.

Was HL & P's failure to supply information to Austin, if you have Standard of Review found that it did so fail, a substantial factor in increasing the cost of the [34] [35] [36] When determining a factual sufficiency South Texas Project? point of error, this Court must consider and weigh all the evidence in the case. It should set aside the verdict and The trial court refused Austin's request. Austin also requested remand the cause for a new trial only if it concludes that that the trial court include the following instruction in the verdict is so against the great weight and preponderance connection with question two and/or three: of the evidence as to be manifestly unjust, regardless of HL & P's failure(s), if any, to supply whether the record contains some evidence of probative information caused an increase in cost force in support of the verdict. Pool v. Ford Motor Co., if they were a substantial factor in 715 S.W.2d 629, 635 (Tex.1986). This Court, however, is bringing about that result. not a factfinder. We do not *797 pass upon the witnesses' credibility or substitute our judgment for that of the trier of The trial court also refused this request. fact, even if there is conflicting evidence that would support a different conclusion. Harco Nat'l Ins. Co. v. Villanueva, 765 Austin fails to cite, and we cannot find, any authority for S.W.2d 809, 810 (Tex.App.—Dallas 1988, writ denied). The its propositions that the term “in reasonable probability” has existence of some evidence of probative force in support of the same meaning as “but for” causation or that the precise the verdict, however, does not mean that the verdict is not term “substantial factor” must appear in the jury issue. On its contrary to the overwhelming weight of all the evidence. In face, the issue submitted by the trial court does not impose a re King's Estate, 150 Tex. 662, 664–65, 244 S.W.2d 660, 661 stricter standard than Austin's requested issue or instruction. (1951). No significant difference exists between the submitted issue and the requested issue or instruction. Because the submitted issue imposed the correct standard concerning causation, and

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involving waste and inefficiency.” “In truth, 60 percent of the engineering had not been completed by the latter part of Failure to Provide Information—Jury Question No. 2 1975 but rather, probably not in excess of five to ten percent of the engineering necessary to support construction had Evidence Contrary to Jury Finding been completed and the percentage may have been ... materially smaller.” [37] In its fifth point of error, Austin contends that the following evidence is contrary to the jury's finding that HL (6) The 1977, 1978, and 1979 Management Analysis & P's failure to furnish information to Austin about the reports concluded that the project began safety-related inadequacy of Brown & Root's engineering to support safety- construction too soon. related construction did not cause any increase in the cost of the project: (7) HL & P discussed for hours with Brown & Root the decision whether to start safety-related construction in (1) Robert Allen, a consultant for Austin and former head 1976 for hours with Brown & Root and knew that it was of power plant construction for Bechtel, testified that, when a calculated risk. nuclear projects begin safety-related construction, costs tend to increase dramatically. (8) Brown & Root started safety-related construction only at HL & P's request. (2) Because there were too few engineering drawings to support the safety-related construction, work was (9) Despite knowing that only sixty percent of the performed out of sequence, which contributed to engineering was complete, HL & P recommended to inefficiencies, rework, loss of efficient use of personnel, the management committee that safety- *798 related increased costs, and schedule delays. construction begin on the project.

(3) When HL & P received the project's construction (10) At the March 12, 1976 management committee permit in 1976, structural engineering could not support meeting, Brown & Root, when asked whether construction. engineering could support the project construction schedule, responded “Hell, yes,” even though it knew (4) All of the participants, other than HL & P, hired Gibbs that response was untrue. and Hill, a well-recognized A/E, to study the baseline estimate prepared by the task force composed of HL & P, (11) If Austin had known that Brown & Root's engineering Brown & Root, and Management Analysis. The Gibbs and was inadequate to support the safety-related construction Hill study reported, “At the time construction was initiated, in April 1976, Austin would have recommended either engineering was behind schedule in issuing construction that the work on the project stop until Brown & Root's drawings and subsequent issues were not far enough ahead engineering could catch up with construction and find of construction needs to support the ongoing construction solutions for and fix the problems or that the project be program efficiently.” canceled.

(5) HL & P's sworn answers to interrogatories sent by (12) If the other participants had indicated that they were Brown & Root during the Brown & Root litigation read, not ready to start safety-related construction or were not “HL & P believes that Brown & Root construction went willing to vote for it, then HL & P would not have been to the field too early.” “The number of design drawings able to start safety-related construction. prepared was totally inadequate to support construction (13) Each day the project was delayed, the project's cost efficiently. If candid reports concerning the amount of increased by $750,000 based on the carrying costs of engineering completed at the end of 1975 had been given the investment, which included interest on the money to the management committee, it is likely that construction borrowed, the cost of the support staff, and the cost of would not have started in the spring of 1976 and a keeping the construction force on the job, and the cost key project mistake would have been avoided.” “HL & of replacement power. P believes the fact that [Brown & Root] engineering and design work was never able to support construction, inevitably caused project work to proceed in a manner

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*799 (5) The decision to start safety-related construction Evidence Supporting Jury Finding was made in September 1975 when the management committee was reviewing the utilization of the limited The following evidence supports the jury's finding: work authorization permit. (1) Donley Jordan, HL & P's chief executive officer (6) No inefficient cost, inordinate amount of rework, or and chairman of the board, testified, “Everybody in the inordinate amount of work performed out of sequence was Houston Lighting & Power Company organization who a result of beginning the safety-related construction work had anything to do with the South Texas Project felt it in April 1976. was the right thing to do to go forward with safety related construction, and that there was no undue risk involved in (7) Based on the critical path analysis, work on the project it.” He also stated that no one at Brown & Root told HL & P progressed at a better than average or at an average rate that Brown & Root believed it was extremely risky to begin for comparable plants built during that time until late 1979. safety-related construction in spring 1976. He also testified This indicates that the engineering was adequate to support that HL & P took the position during the Brown & Root construction up to 1980. litigation that starting safety-related construction was a key project mistake because at that time no one knew what it (8) Darrell Halligan, Bechtel's vice president for would take to complete a nuclear power plant and that HL the project's operations, testified that the amount of & P had asked its lawyers to draft a petition as broad as engineering that Brown & Root had available prior to they thought the participants had a chance to prove. He also beginning safety-related construction was comparable to stated that, looking back, he knew of no one who has done a other nuclear projects that he had supervised. detailed study on the project that said that the project should not have started safety-related construction at that time. He (9) Jack Mooney, Brown & Root's engineering manager further testified that at the time the decision was made to and the person who told the participants at the March 12, start safety-related construction, all the participants had the 1976 management committee meeting that Brown & Root same information as HL & P. was ready to begin safety-related construction, testified that there were adequate engineering drawings available (2) Ed Turner, HL & P's general manager of power to start safety-related construction in April 1976. He also plant engineering and construction for the project, and testified that his speech to the management committee and Ralph Hernandez, an HL & P engineer, testified that the decision to start safety-related construction was made they had no concern in March 1976 about Brown & by him without influence from either Brown & Root's Root's engineering being adequate to support safety-related management or HL & P personnel. construction. Hernandez also testified that sufficient engineering drawings were available and that no problems (10) Robert Traylor, Management Analysis's cofounder, occurred in 1977 through 1980 that resulted from the testified that his company found no cost or schedule failure to have sufficient engineering drawings complete at problems that resulted from beginning safety-related the time safety-related construction began in April 1976. construction in 1976.

(3) Brown & Root did not tell HL & P that its engineering After considering all of the evidence, we conclude that the was inadequate to support safety-related construction. At jury's finding that any failure to provide information did not the April 1976 management committee meeting, Brown cause excess project costs is not against the great weight & Root told HL & P that engineering was sixty-three and preponderance of the evidence. The evidence, therefore, percent complete and purchasing was twenty-two percent supports the jury's finding. Because the jury's finding that any complete. failure to provide information did not cause excess project costs is not against the great weight and preponderance of the (4) The project met every scheduled construction activity evidence, the trial court did not err when it overruled Austin's in 1976. These acts could not have occurred without having motion for new trial. We overrule Austin's fifth point of error. sufficient engineering drawings available. Because of our disposition of Austin's fifth point of error, we need not address HL & P's first conditional cross-point

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

requesting this Court to affirm the trial court's judgment as to Knox Broom, one of Brown & Root's senior vice Austin's breach of contract claim. presidents, at the September 21, 1978 management committee meeting, that the engineering drawings were only eight percent complete at the time Brown & Root started safety-related construction, thus propagating Austin's DTPA Claims a myth, which others repeated without performing In its sixth point of error, Austin argues that HL & additional analysis or studies, that Brown & Root was P's unconscionable conduct adversely affected Austin. On not prepared to start safety-related construction when it appeal, Austin appears to rest its DTPA claim solely on HL & did. P's conduct in relation to the decision to begin safety-related (2) Brown & Root's statement in 1976 that sixty percent of construction in 1976. the engineering was complete was accurate considering the information available at that time. Brown & Root [38] [39] An “unconscionable action or course of action” based its statement on an estimate that the project would means an act that (1) takes advantage of a consumer's lack of take two million engineering man-hours to complete and knowledge to a grossly unfair degree or (2) results in a gross that Brown & Root had used sixty percent of those man- disparity between the value received and consideration paid. hours at that time. By 1978, the estimate of engineering TEX.BUS. & COM.CODE ANN. § 17.45(5) (Vernon 1987); man-hours grew to twenty million. In hindsight, this Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex.1985). Taking meant that Brown & Root had actually completed less advantage of a consumer's lack of knowledge to a grossly than eight percent of the engineering before beginning unfair degree requires a showing that the resulting unfairness safety-related construction. Broom based his statement was glaringly noticeable, flagrant, complete, and unmitigated. on the revised engineering man-hour estimate. Chastain, 700 S.W.2d at 584. A gross disparity between value received and consideration paid means a glaring and (3) Kleinrath reached his conclusion that Brown & flagrant disparity. Id. at 583. A consumer's proof of gross Root's engineering was inadequate to start safety-related unfairness and gross disparity does not require proof that the construction based on only four or five engineering defendant acted intentionally, knowingly, or with conscious drawings provided by Austin's lawyers. indifference. Chastain, 700 S.W.2d at 583. (4) Mooney, Brown & Root's engineering manager in April 1976, testified that neither Management Analysis nor Gibbs and Hill ever discussed with him whether Brown Evidence Contrary to Jury Finding & Root's engineering was sufficient to begin safety- Austin relies on the same evidence set forth above under its related construction. Prior to testifying, he reviewed all fifth point of error to *800 support its argument here that the the engineering drawings produced by Brown & Root jury's finding that HL & P's unconscionable conduct did not up to March 12, 1976. By March 12, 1976, almost 700 affect Austin was against the great weight and preponderance engineering drawings were complete or issued. of the evidence. (5) Ralph Hernandez, an HL & P engineer whose responsibilities in 1976 included providing HL & P with an overview of Brown & Root's structural engineering, Evidence Supporting Jury Finding reviewed the drawings available before April 1976. Based on this review, he testified that engineering was [40] The following evidence supports the jury's finding that sufficient to support construction. He further testified HL & P did not take advantage of Austin to a grossly unfair that engineering did not fall behind construction until the degree: first quarter of 1978. (1) Management Analysis did not base its statement that After a review of the evidence, we conclude that (1) the jury Brown & Root began safety-related construction too heard evidence that, at the time the decision was made to soon on the fact that there were an inadequate number start safety-related construction, HL & P believed that Brown of engineering drawings or engineering studies. Rather, & Root's engineering was sufficient to support safety-related Management Analysis repeated a statement made by construction and (2) any statements HL & P made to that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

the project over its useful lifetime, which includes effect were not unconscionable in a manner that would take routine maintenance, operating personnel, and nuclear unfair advantage of Austin. We further conclude that the true fuel; capital additions, which includes upgrading the percentage of engineering drawings completed by Brown & plant and insuring continual compliance with quality and Root in March 1976 could only be determined in hindsight at safety requirements; and the cost of decommissioning the end of the project. HL & P had to base its decision on the the plant. information available at the time. (6) Based on fuel savings and reliability only, the project's The following evidence supports the jury finding that there lifetime value to Austin exceeds its costs by $9.206 was not a gross disparity between the value of the plant that billion ($357 million in 1989 dollars). Austin received and the consideration it paid: (7) In addition to fuel and reliability savings, the project (1) Of the plants available for Austin to use to generate also added diversity to the types of plants available to electricity, the project is the cheapest to operate. Utilities Austin to generate electricity. *801 place into operation the cheapest plants first. (8) It would have cost Austin $432 million (in 1989 dollars) (2) In its 1973 generating plan, Austin determined that more to own and operate a coal plant over its lifetime. the cost of electric energy was the result of capital investment, fuel, maintenance, and operations. Its goals After a review of the evidence, we conclude that the jury in its 1987 generating plan were to: could have found that the project's value to Austin exceeds Austin's share of the construction costs. Because the evidence —meet long-term customer demand; shows that HL & P did not take advantage of Austin's lack of knowledge and that no disparity exists between the —provide electricity with adequate reliability; value Austin received and the consideration it paid, the jury's —minimize the cost of generating electricity to the rate finding that no deceptive trade practice or unconscionable payers; and act by HL & P adversely affected Austin is not against the great weight and preponderance of the evidence. We overrule —diversify energy resources. Austin's sixth point of error. Because of our disposition of Austin's sixth point of error, we need not address HL (3) Without the project, Austin would pay $40–$100 & P's second cross-point concerning whether Austin is a million/year more to operate its system. Over the “consumer” as to HL & P as defined by the DTPA or whether project's lifetime, this adds up to an $11.6 billion savings HL & P is liable for any DTPA violations by Brown & Root. (represented to the jury as $2.5 billion in 1989 dollars).

(4) Austin will experience savings as a result of the project's reliability. Reliability means the frequency with which CONCLUSION outages will occur, the number of customers affected, and how long those outages will last. Without the Because (1) the duty of reasonable skill and care is not implied project, these events will occur more frequently and be in the participation agreement, (2) the newspaper articles are of longer duration. Austin's target energy reserve was not hearsay, (3) the jury charge was proper, (4) the jury's twenty percent. Without the project, there will be several findings are not against the great weight and preponderance of times that its reserve will fall below that number. The the evidence, and (5) the trial court properly denied Austin's project's reliability value equals $6.7 billion ($1.2 billion motion for new trial, the trial court committed no reversible in 1989 dollars). errors. We overrule all of Austin's points of error.

(5) Austin's cost to build and operate the project for We affirm the trial court's judgment. a lifetime is $9.065 billion ($3.375 billion in 1989 dollars). This amount includes: the amount that Austin will pay to service its debt; Austin's share of the total All Citations capital cost to build the project, less Austin's share 844 S.W.2d 773 of the Brown & Root settlement; the cost to operate

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 21 City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)

Footnotes 1 See Ferguson v. Williams, 670 S.W.2d 327, 331 (Tex.App.—Austin 1984, writ ref'd n.r.e.) (managing partner held not liable for mismanagement of a joint venture despite six specific acts of negligence); accord, Marcus v. Green, 13 Ill.App.3d 699, 300 N.E.2d 512, 520 (1973) (partner responsible for violation of scaffolding safety statute entitled to indemnity from partnership as risk inherent in partnership business); Charlton v. Sloan, 76 Iowa 288, 41 N.W. 303, 304 (1888) (partner not charged with loss resulting from unwise lease); Hurter v. Larrabee, 224 Mass. 218, 112 N.E. 613, 614 (1916) (partner with duty to supervise books not charged when there was only “mere negligence” in failure of duty to supervise); Thomas v. Milfelt, 222 S.W.2d 359, 365 (Mo.App.1949) (partner not charged with losses unless they result from fraud, culpable negligence, or bad faith); J.E. Crosbie, Inc. v. King, 192 Okl. 53, 133 P.2d 543, 546 (1943) (partners assume risk of loss that comes from bad judgment); Knipe v. Livingston, 209 Pa. 49, 57 A. 1130, 1130 (1904) (deceased partner who had been lax in collecting accounts and had carried bad debts as assets was not charged with resulting losses); Binning v. Miller, 55 Wyo. 478, 102 P.2d 64, 76 (1940) (absent fraud, culpable negligence, or bad faith, cotenant who acted in good faith not liable for exercising poor judgment).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 22 City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015) 2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

M.S. Ernst, Dallas City Attorney, Dallas, Janet Marie Spugnardi, City Attorney's Office, Irving, Jennifer Anne 2015 WL 2147986 Richie, City of Waco Legal Serv. Dept., Waco, Jennifer Supreme Court of Texas. Avalon Whit DeCurtis, Messer, Rockfeller & Fort, PLLC, City of Dallas, Petitioner, Marsha L. Foulks, Attorney at Law, Frisco, for Petitioner City v. of Dallas. TCI West End, Inc., Respondent Melissa Ann Johnson, Mitchell Madden, Thomas V. Murto III, Holmgren Johnson: Mitchell Madden, LLP, Robert B. No. 13–0795 | OPINION Gilbreath, Hawkins Parnell Thackston & Young LLP, Dallas, DELIVERED: May 8, 2015 for Respondent TCI West End, Inc. Synopsis Jarold Lee Apple, How Frels Rohde Woods & Duke, R. Background: City brought action against developer for Michael Northrup, Cowles & Thompson, P.C., Dallas, for demolishing a historic building in violation of city Amicus Curiae The National Trust for Historic Preservation. ordinances and for fraud. Texas Historical Commission (THC) intervened to recover damages for demolition of Joe H. Thrash, Assistant Attorney General, Austin, for historic structure without appropriate written permission Intervenor Texas Historical Commission from municipality. The 160th Judicial District Court, Dallas County, No. 06–04868–H, Jim Jordan, J., entered judgment H. Grady Chandler, Attorney at Law, Garland, for Other on special jury verdict for city and THC in part, and granted Interested Party Dorbet, Inc. developer's motion for judgment notwithstanding the verdict (JNOV) in part. The Dallas Court of Appeals affirmed in part, Lawrence J. Friedman, Friedman & Feiger, LLP, Dallas, for reversed in part, and rendered judgment, 407 S.W.3d 292. Other Interested Party Weir Industries, Inc. City's petition for review was granted. Opinion

Holdings: The Supreme Court held that: *1 Section 54.012(3) of the Texas Local Government Code authorizes a municipality to pursue a civil action [1] statutes authorizing municipalities to bring civil actions against a property owner to enforce an ordinance “for zoning and to recover civil penalties for violations of ordinances that provides for the use of land or classifies a parcel of provided City authority to bring action against developer, and land according to the municipality's district classification scheme.”TEX. LOC. GOV'T CODEE § 54.012(3). Despite [2] statute authorizing municipalities to recover civil penalties section 54.012(3)'s clear and unambiguous language, the for violation of ordinances applied to instances in which a court of appeals held that a municipality cannot pursue a civil defendant violated an ordinance after receiving notice of an action under that statute for violations of “general zoning ordinance's provisions or failed to take action necessary for ordinances regulating the use of land.” 407 S.W.3d 292, compliance with the ordinance after receiving such notice. 301 (Tex.App.–Dallas 2013). Because the court of appeals' holding is incompatible with the statute's plain language, we Reversed and remanded. reverse the court's judgment and remand the case to the court of appeals for further proceedings.

ON PETITION FOR REVIEW FROM THE COURT OF The City of Dallas contends that TCI West End, Inc. APPEALS FOR THE FIFTH DISTRICT OF TEXAS (TCI) demolished a building located in a historic overlay district in violation of a city ordinance. See Dallas City Attorneys and Law Firms Ordinance No. 21391, as amended by Ordinance No. 22158, § 7.1 (requiring building owner, prior to demolishing or Barbara E. Rosenberg, Christopher D. Bowers, James B. altering building located in historic overlay district, to apply Pinson, Assistant City Attorneys, Christopher J. Caso, City for determination as to whether structure is “contributing Attorney's Office, Melissa A. Miles, City of Dallas, Warren

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015) 2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

structure” subject to strict demolition requirements); see Section 54.012, which is located in chapter 54, subchapter also id. at § 4 (incorporating chapter 51A of the Dallas B of the local government code, authorizes a municipality City Code); Dallas, Tex. City Code § 51A–4.501(a)–(p) to pursue a civil action against a property owner to enforce (regulating historic overlay districts). 1 Among other claims, several categories of ordinances, including “an ordinance ... the City sued TCI for civil penalties under section 54.017 for zoning that provides for the use of land or classifies of the Texas Local Government Code, as authorized by a parcel of land according to the municipality's district section 54.012 of the code. SeeTEX. LOC. GOV'T CODEE § classification scheme.” TEX. LOC. GOV'T CODEE § 54.012 (listing types of ordinances municipality can enforce 54.012. 3 The remaining provisions in subchapter B address by civil action), .017 (authorizing civil penalties for ordinance the rules, procedures, and relief available for a civil action violations). Following a jury verdict in the City's favor, the authorized by section 54.012. See id. §§ 54.013–.020. trial court rendered judgment awarding the City $750,000 in Among other available remedies, section 54.017 permits a civil penalties. municipality to recover civil penalties, up to specified limits, upon proof that: The court of appeals reversed, holding that sections 54.012 and 54.017 apply only to health and safety ordinances, not (1) the defendant was actually notified of the provisions of “general zoning ordinances regulating the use of land.” 407 the ordinance; and S.W.3d at 301. In the alternative, the court held that the (2) after the defendant received notice of the ordinance City presented no evidence that TCI was informed about the provisions, the defendant committed acts in violation of the relevant ordinance provision before demolishing the building, ordinance or failed to take action necessary for compliance as required to obtain civil penalties under section 54.017. Id. with the ordinance. at 301. On rehearing, one justice dissented on both counts, explaining that (1) sections 54.012 and 54.017 do not contain Id.§ 54.017. the health-and-safety limitation imposed by the court and (2) sufficient evidence supported the jury's finding that TCI had The court of appeals determined that all the provisions actual notice of the ordinance provision before demolishing in subchapter B, including sections 54.012(3) and 54.017, the building. Id. at 302–05. “relate only” to health and safety matters and thus do not apply to general zoning ordinances regulating the use of land. [1] Although other issues have been raised on appeal, the 407 S.W.3d at 301. The court further held that the City's threshold issues are (1) whether sections 54.012(3) and historic-district regulation does not qualify for enforcement 54.017 are limited to enforcement of “health and safety” as a health-and-safety ordinance under subchapter B because zoning ordinances; and (2) whether section 54.017 requires its stated purpose is to “protect buildings of historical, that actual notice be effected before violation of the applicable cultural, and architectural significance” in the historic overlay 2 district. Id. (citing Dallas City Ordinance No. 21391, as ordinance. These matters present questions of law that we review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, amended by Ordinance No. 22158). As a result, the court 625 (Tex.2008). concluded that the ordinance can only be enforced under chapter 211 of the local government code, id. which governs *2 [2] [3] [4] Our primary objective in construing a municipal zoning and has a stated purpose of “promoting statute is to give effect to the Legislature's intent as expressed the public health, safety, morals, or general welfare and in the statute's plain language. TGS–NOPEC Geophysical Co. protecting and preserving places and areas of historical, v. Combs, 340 S.W.3d 432, 439 (Tex.2011). We consider the cultural, or architectural importance and significance,”TEX. statute as a whole, rather then viewing individual provisions LOC. GOV'T CODEE § 211.001. in isolation, and presume the Legislature selected the statute's language with care, choosing each word for a purpose and To support this construction of subchapter B, the court of purposefully omitting words not chosen. Id. We must avoid appeals cited a Texas Attorney General opinion limiting the adopting an interpretation that “renders any part of the statute statute's application to health and safety matters because (1) meaningless.” Crosstex Energy Servs, L.P. v. Pro Plus, Inc., it is entitled “Municipal Health and Safety Ordinances” and 430 S.W.3d 384, 390 (Tex.2014). (2) section 54.012 specifically refers to those types of matters in some of its subsections. Id. (citing Tex. Att'y Gen. Op. No. GA–0267 (2004)). The court also cited Hollingsworth

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015) 2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

v. City of Dallas, 931 S.W.2d 699 (Tex.App.–Dallas 1996, As a general principle, we eschew constructions of a writ denied), in which the court had previously resolved statute that render any statutory language meaningless or an apparent conflict between the injunctive-relief provisions superfluous. Crosstex, 430 S.W.3d at 390. By interposing a in chapters 54 and 211 as they pertain to general zoning limitation into subsection (3) that the Legislature deliberately ordinances regulating the use of land. In Hollingsworth, a chose to include in some—but not all—of section 54.012's property owner had argued that the City of Dallas could subparts, the court of appeals' construction of the statute not obtain injunctive relief for a zoning-ordinance violation defeats the purpose of the Legislature's carefully chosen without complying with section 54.106, which authorizes words. This we cannot abide. injunctive relief only on “a showing of substantial danger of injury or an adverse health impact to any person or We likewise do not attribute decisive weight to subchapter to the property of any person other than the defendant.” B's title because “[t]he heading of a title, subtitle, chapter, or Id. at 702;TEX. LOC. GOV'T CODEE § 54.016. Section section does not limit or expand the meaning of a statute.” 211.012(c)'s injunctive-relief remedy includes no similar See TEX. LOC. GOV'T CODEE § 311.024; see also Waffle requirement. 4 TEX. LOC. GOV'T CODEE § 211.012(c). House, Inc. v. Williams, 313 S.W.3d 796, 809 (Tex.2010). The court resolved the conflict in favor of section 211.012's application because it specifically applies to ordinances Nor do we perceive a fatal conflict between chapter 54, regulating the use of land and section 54.016 does not. subchapter B and chapter 211 that would render the former 931 S.W.2d at 703 (construing statutes to avoid creating wholly inapplicable to a general land-use ordinance despite a conflict and determining that “the Legislature intended its plain language. Chapter 54 provides municipalities with section 211.012 to apply to ordinances regulating the use of general authority to enforce ordinances whereas chapter 211 land and intended section 54.016 to apply to other types of grants municipalities specific authority to pass substantive ordinances not at issue”). ordinances regulating zoning. Whatever conflict may exist between the injunctive relief available under each of these *3 We hold that the court of appeals' interpretation of section statutory schemes, we cannot say that the statutes are 54.012(3) as incorporating a health-and-safety limitation is mutually exclusive merely because they overlap in scope. contrary to the plain and unambiguous language in the statute Although both statutory schemes authorize recovery of and would render meaningless and redundant language in civil penalties, the availability of the particular remedies that section expressly circumscribing other categories of hinge on distinct procedural mechanisms. Chapter 54 creates ordinances enforceable under subchapter B. a framework for pursuing civil penalties for specific conduct while chapter 211 permits, but does not require, Section 54.012(3) expressly authorizes municipalities, such municipalities to adopt civil penalties for the violation of as the City, to enforce ordinances “for zoning that provides an ordinance adopted under that chapter. Compare TEX. for the use of land or classifies a parcel of land according LOC. GOV'T CODEE § 54.017withid. § 211.012(b). The to the municipality's district classification scheme.”TEX. City's election to forego adopting specific civil penalties for LOC. GOV'T CODEE § 54.012(3). Section 54.012(3)'s violations of specific zoning ordinances does not preclude the language plainly encompasses the zoning ordinance at issue City from pursuing the remedies already available to it under in this case, and neither the words “health” and “safety” chapter 54, subchapter B, on the terms provided therein. nor analogous limitations are included anywhere therein. In comparison, at least three other subsections of section 54.012 *4 Applying section 54.012(3)'s plain language, we expressly limit the types of ordinances that may be enforced conclude that chapter 54, subchapter B authorizes a suit for to those involving health or safety matters or use comparable civil penalties based on a violation of the land-use restrictions terminology. Seeid. § 54.012(1) (pertaining to ordinances embodied in Dallas City Ordinance No. 21391, as amended “for the preservation of public safety, relating to [building by Ordinance No. 22158. The court of appeals' contrary construction]”), .012(2) (referring to ordinances “relating holding is erroneous. to the preservation of public health or to the fire safety of a building or other structure or improvement”), .012(6) [5] In an alternative holding, the court of appeals determined (applying to ordinances “relating to dangerously damaged or that the City's civil-penalty claim would fail on the deteriorated structures or improvements”). merits due to legally insufficient evidence that TCI had received actual notice of the ordinance provision before

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015) 2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

ordinance after it demolished the building, because “to bring it demolished the building in violation of the ordinance. itself into compliance with the ordinance after demolition, Although acknowledging the existence of evidence that TCI [TCI] would have to obtain approval from the Landmark had actual notice of some of the requirements for obtaining Commission before the demolition.” a demolition permit for buildings in the historic district, the court held that the City “presented no evidence that [TCI] was The court of appeals did not address these arguments. Instead, ever informed of the ordinance provisions themselves before it concluded that there was no evidence that TCI had actual the building was demolished.” 407 S.W.3d at 301 (emphasis notice before it “violated an ordinance” by demolishing added). the building, without considering whether TCI could have “take[n] action necessary for compliance with the ordinance Regardless of the validity of the court's assessment of after receiving such notice.” Without addressing whether, the evidence, which we need not consider, the court's in fact, TCI could have taken action to comply with the analysis fails because section 54.017 authorizes an award of ordinance after receiving actual notice of the ordinance, we civil penalties if the defendant violated an ordinance after agree with the City that the court of appeals erred in failing to receiving notice of its provisions or failed to take action consider whether the civil-penalty award could be sustained necessary for compliance with the ordinance after receiving under this alternative statutory ground. such notice. TEX. LOC. GOV'T CODEE § 54.017(a). The statute's use of “or,” a disjunctive, identifies two alternative Accordingly, without hearing oral argument, we reverse bases for recovering civil penalties. See id.; see also City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 642 the portion of the court of appeals' judgment concluding that chapter 54, subchapter B does not authorize the City's (Tex.2013). The City asserts that the court of appeals erred because there is some evidence that, even if TCI did not enforcement action against TCI and remand the cause to that receive actual notice of the ordinance provisions until after court for further proceedings consistent with this opinion. it had already violated the ordinance by demolishing the SeeTEX. R. APP. P. 59.1. building, TCI could have sought a post-demolition permit or taken other steps “necessary for compliance with the All Citations ordinance after receiving such notice.” In response, TCI contends that it could not possibly have complied with the --- S.W.3d ----, 2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

Footnotes 1 The ordinance defines a “contributing structure” as one that “retains its essential architectural integrity of design and whose architectural style is typical or integral to [the] district.” 2 The City has not appealed adverse holdings by the trial court and court of appeals on its other claims. 3 Although the statute has been amended since the events giving rise to this litigation, the changes are not material to the issues on appeal; accordingly, we cite the current version of the statute for convenience. 4 Section 211.012(a) authorizes a municipality to adopt ordinances to enforce (1) the provisions of chapter 211, subchapter A, which imbues municipalities with the authority to adopt general zoning regulations, and (2) any ordinance or regulation adopted thereunder. TEX. LOC. GOV'T CODEE § 211.012. Section 211.012(c) provides that “in addition to other remedies,” a municipal authority may obtain an injunction “[i]f a building or other structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained ... in violation of this subchapter or an ordinance or regulation adopted under this subchapter.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

intervened. See Public Utility Regulatory Act (PURA), Tex.Rev.Civ.Stat.Ann. art. 1446c, § 69 (West Supp.1993); 851 S.W.2d 896 Texas Administrative Procedure and Texas Register Act Court of Appeals of Texas, (APTRA), Tex.Rev.Civ.Stat.Ann. art. 6252–13a, § 19 (West Austin. Supp.1993). In its final judgment, the district court affirmed CITY OF EL PASO and Public the agency order in one part and reversed it in another, Utility Commission of Texas, remanding the case to the Commission. The Commission and v. the City appeal. See APTRA § 20. We will affirm the district- court judgment. EL PASO ELECTRIC COMPANY.

No. 3–92–038–CV. | March 10, 1993. | Rehearing Overruled May 26, 1993. FUEL–RECONCILIATION PROCEEDINGS

Electric company and city sued for judicial review of An electric utility is generally entitled to recover through final order issued by public utility commission in fuel its rates any sums expended for reasonable and necessary reconciliation proceeding. The 147th Judicial District Court, operating expenses, including the cost of fuel and fuel-related Travis County, F. Scott McCown, J., affirmed agency order items. PURA § 39(a). A utility incurs these fuel costs directly in one part and reversed it in another, remanded case to when it generates its own electric power; it incurs them commission, and commission and city appealed. The Court of indirectly, as an element of the price paid, when the utility Appeals, Powers, J., held that: (1) commission was required buys electric power from another. Although the Company to provide explanation for choice of meaning it assigned to generates its own electric power, it also purchases electric word “prospectively” which produced inconsistent treatment power under a contract with Southwestern Public Service of capacity costs in two back-to-back reconciliation periods, Company. and (2) commission was not obliged to deduct all profit from off-system sales in calculating company's known and Before 1983, the Commission calculated an electric utility's reasonably predictable fuel costs. operating expenses (and hence the utility's rates) based on actual fuel costs, authorizing the utility to “pass through” Affirmed. automatically to its customers any increases or decreases in such costs. 1 The legislature forbade the practice in 1983. 2 Attorneys and Law Firms To accommodate the new legislation, *898 the Commission promulgated a set of rules known collectively as the “fuel *897 Norman J. Gordon, Diamond, Rash, Gordon & rule.” 8 Tex.Reg. 3540 (1983) (16 Tex.Admin.Code § 23(b), Jackson, P.C., El Paso, for City of El Paso. since amended).

Dan Morales, Atty. Gen., Mary A. Keeney, Asst. Atty. Gen., As a practical matter, the Commission cannot embark upon Austin, for Public Utility Com'n of Texas. and decide a new rate case with each variation in fuel prices. The agency therefore adopted, for its ratemaking, the device John F. Williams, Clark, Thomas, Winters & Newton, Austin, of a “fixed fuel factor.” This factor is the sum of a utility's for El Paso Elec. Co. “known costs” for fuel plus its “reasonably predictable fuel Before POWERS, ABOUSSIE and B.A. SMITH, JJ. costs.” The latter element renders the sum a mere estimate of the utility's fuel costs. Nevertheless, the estimate is fixed Opinion for ratemaking purposes as the utility's hypothetical fuel cost; it is used in calculating the utility's total operating expenses POWERS, Justice. and, ultimately, the rates the utility is permitted to charge its customers. 16 Tex.Admin.Code §§ 23.23(b)(2)(B), 23.23(c). El Paso Electric Company and the City of El Paso sued Because actual fuel costs may vary from the estimate, after for judicial review of a final order issued by the Public the rates go into effect, the utility may recover through its Utility Commission in a contested case, a “fuel-reconciliation rates more or less than the net income its rates were designed proceeding” initiated by the Company in which the City to produce. Consequently, the fuel rule provides for periodic

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

adjustments or “reconciliations” of the difference between reducing its customers' bills by purchasing cheaper power actual fuel costs and the hypothetical cost represented by from Southwestern. The Commission's decision in this earlier the fixed-fuel factor. 16 Tex.Admin.Code § 23.23(b)(2)(H). case preceded by about nine months the amendment of the The reconciliation may be part of a general rate case or an fuel rule to allow expressly for the reconciliation of capacity independent reconciliation proceeding. Id. Depending on the costs upon a demonstration of “special circumstances”; that is result of the reconciliation, the utility may be required to to say, the Commission viewed the equitable considerations refund to its customers an over-recovery of fuel costs or it may as amounting to an implied exception to a general rule that be permitted to recoup an under-recovery through surcharges capacity costs were non-reconcilable. It appears to *899 us to its customers. 16 Tex.Admin.Code §§ 23.23(b)(2)(B), (F), self-evident, therefore, that “equitable” considerations could (G). come within the express exception presently made by section 23.23(b)(2)(B)(ii) for “special circumstances.” No argument is made to the contrary in the present appeal.

PURCHASED–POWER CAPACITY COSTS The Commission's final order in docket number 6350 also Not every fuel-related cost is includable in a utility's adopted a part of the examiner's report wherein he stated fixed-fuel factor; consequently, not every fuel-related cost that he agreed with a witness's view that the capacity costs is recoverable through the reconciliation process. One paid to Southwestern “should be treated as a non-reconcilable excludable item is denominated “purchased power capacity expense prospectively.” This gives rise to a part of the present costs.” The term “capacity costs” refers to one element of controversy. the price charged by a seller of electric power—an element that represents the seller's fixed costs in generating the power. (Another element, denominated “energy charges,” represents Docket Number 8588 the seller's variable costs in generating the power—the cost of fuel, for example). A Commission regulation presently The contested case now before us on appeal was conducted excludes from a utility's fixed-fuel factor the capacity-cost under the Commission's docket number 8588. It is not a element of purchased power “unless the utility demonstrates rate case but rather an independent reconciliation proceeding. that such treatment is justified by special circumstances.” In this proceeding, the Company requested reconciliation of 16 Tex.Admin.Code § 23.23(b)(2)(B)(ii). The Commission's $4,202,090 in capacity costs paid to Southwestern between regulations did not always allow for exceptions when July 31, 1985, and April 25, 1986, a period of about nine “justified by special circumstances.” Before the regulation months. The period is the interval between the last day of the was adopted, the Commission issued its final order in an reconciliation period covered in docket number 6350 (July earlier contested case under the agency's docket number 6350. 31, 1985) and the effective date of the new rates established in that contested case (April 25, 1986). As special circumstances justifying reconciliation of the capacity costs paid in that period, the Company pointed to the Commission's final order Docket Number 6350 in docket number 6350, wherein the agency had declared Docket number 6350 was a general rate case that that capacity costs should be treated as non-reconcilable included a reconciliation proceeding. The Company satisfied “prospectively.” The word “prospectively” meant, according the Commission that special considerations justified to the Company, from and after the effective date (April 25, reconciliation treatment of the capacity costs the Company 1986) of the new rates established in docket number 6350. paid to Southwestern, during the period March 1984 Hence, by force of that order, the Company was entitled through July 1985, even though such costs would not to reconciliation of capacity costs paid in the nine-month ordinarily be entitled to such treatment. The Commission's interval before the new rates became effective. final order in docket number 6350 demonstrates that the special considerations were “equitable” in nature: (1) the In its finding of fact 14 in docket number 8588, the purchases of power from Southwestern had benefitted the Commission rejected the Company's contention, stating Company's customers; (2) capacity costs were a necessary simply that the Company had “failed to show special element of the Southwestern charges; and (3) it would circumstances warranting inclusion” of such capacity costs in be inequitable to penalize the Company for successfully the reconciliation. The sole basis for this conclusion is found

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in a portion of the examiner's report, which the Commission “prospectively” was ambiguous in context, and nothing in adopted in its final order: The word “prospectively,” as used the record before us suggests why the Commission preferred in the final order in docket number 6350, meant from and after one date over another. We are left ultimately with the stark July 31, 1985—the end of the reconciliation period covered conclusion that “prospectively” means from and after July in docket number 6350—as opposed to the Company's 31, 1985, merely because that is what the examiner in docket contention that the word meant from and after April 25, 1986, number 8588 decided it meant. Was the Commission legally the effective date of the rates set in the Commission's final obliged to supply an actual reason or explanation for its choice order in docket 6350. of meanings? We believe it was.

The Company sued for judicial review of this aspect of the We cannot find that the legislature has imposed upon the Commission's final order in docket number 8588. The district Commission, by an explicit statutory enactment, a duty court reversed the agency order on the ground that it was to supply an explanation or reason for its action. But arbitrary and capricious in failing adequately to explain why such a requirement need not have a statutory origin. It is the capacity charges were admitted to reconciliation in the preeminently a concomitant of a court's duty of judicial one period and denied reconciliation in the next succeeding review, a duty assigned the trial court and this court in period. The court remanded the case to the Commission to PURA § 69. This statute contemplates meaningful judicial supply an explanation. In the Commission's only point of review, not a charade of the real thing; therefore it implies error and in the City's first point of error, they complain of a power to require the Commission to supply any reasons or this aspect of the district-court judgment. explanations necessary for the reviewing court to understand the Commission's final order.

If the administrative action is to be Discussion and Holdings tested by the basis upon which it purports to rest, that must be set [1] In its final order in the present case, the Commission forth with such clarity as to be gave a single ground for its decision regarding capacity costs: understandable. It will not do for a the Company failed to demonstrate the requisite “special court to be compelled to guess at circumstances” because the word “prospectively,” as used in the theory underlying the agency's the final order adjudicating docket number 6350, meant from action; nor can a court be expected to and after July 31, 1985. The final order in the present case, chisel that which must be precise from excluding capacity costs from reconciliation, must stand or what the agency has left vague and fall on that basis. We are not at liberty to sustain the order indecisive. In other words, “We must on some other basis we might imagine as being sufficient know what a decision means before the for the different treatment in the two cases—for example, an duty becomes ours to say whether it is apparent difference in the material factual circumstances as right or wrong.” between the two proceedings. We may judge the sufficiency of the Commission's order solely on the basis given by S.E.C. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, the agency itself for its decision; to do otherwise would 1577, 91 L.Ed. 1995 (1947) (emphasis added) (citations constitute an invasion of the agency's province. Morgan omitted); see also S.E.C. v. Chenery Corp., 318 U.S. 80, Drive Away, Inc. v. Railroad Comm'n, 498 S.W.2d 147, 152 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943) (“[T]he orderly (Tex.1973); *900 Professional Mobile Home Transp. v. functioning of the process of review requires that the grounds Railroad Comm'n, 733 S.W.2d 892, 904 (Tex.App.—Austin upon which the administrative agency acted be clearly 1987, writ ref'd n.r.e.). disclosed and adequately sustained.”) (emphasis added); see generally Bernard Schwartz, Administrative Law § 7.29, [2] We note first that the examiner's purported explanation at 429 (2d ed. 1984); Kenneth C. Davis, Administrative —that the word “prospectively” meant from and after July Law Text § 16.07, at 326 (3d ed. 1972). The requirement 31, 1985—adds nothing to enlighten the Commission's naked of explanations or reasons is frequently imposed when it conclusion that the Company had failed to demonstrate the appears to the reviewing court that an agency has departed necessary special circumstances. Both the conclusion and from its earlier administrative policy or there exists an the purported explanation are equally opaque. The word apparent inconsistency in agency determinations. Louis Jaffe,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)

Judicial Control of Administrative Action 587 (1965); see, We hold, therefore, that the Commission's final order e.g., Atchison, T. & S.F. Ry. Co. v. Wichita Bd. of Trade, 412 erroneously omitted to supply a necessary explanation for the U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973); choice of meaning it assigned to the word “prospectively,” Secretary of Agric. v. United States, 347 U.S. 645, 653, 74 producing thereby the inconsistent treatment of capacity costs S.Ct. 826, 831, 98 L.Ed. 1015 (1954). The requirement for in the two back-to-back reconciliation periods. As in Gulf explanatory “reasons” should not be confused with a statutory States, the agency order in docket number 8588 referred requirement that binds an agency to supply findings of fact only to the statement of an individual (the hearing examiner in support of its conclusions of law, as in APTRA § 16(b). in docket number 6350) whose naked conclusion was not “Reasons differ from findings in that reasons relate to law, explained in the record. We agree with the trial court that policy, and discretion rather than to facts.” Davis, supra, at the failure to supply the necessary explanation was an abuse 326. Nevertheless, agencies frequently use findings of fact to of discretion under APTRA § 19(e)(6); it is immaterial that explain the conclusions which express their choices in matters under the peculiar Texas view of “substantial evidence” of discretion, law, and policy. Schwartz, supra, at 428–30. the omission would also amount to a want of “substantial evidence” under APTRA § 19(e)(5). [3] We believe the Supreme Court of Texas, in Public Utility Commission v. Gulf States Utilities, 809 S.W.2d 201, The City and the Commission raise several arguments to 212 (Tex.1991), adopted a requirement that agencies must the contrary. They first complain the Company offered no supply explanations or reasons when these are necessary to an “evidence” of special circumstances. It is clear from the intelligent understanding of their final orders. There, the court record, however, that the Company was not relying upon reversed a Commission decision because the agency record evidentiary grounds for its contention that such special revealed that the Commission had apparently considered only circumstances existed in docket number 8588, the case a single factor in taking a particular discretionary action we now review. Rather, the Company was relying upon (dividing between a utility and its ratepayers the benefit legal grounds—that the final order in docket number 6350, of proceeds received from the sale of a utility asset). The properly construed, encompassed the nine months for which court noted that numerous other factors, including equitable reconciliation was requested in docket number 8588. Indeed, considerations, *901 appeared applicable to the agency's the Commission in docket number 8588 rejected the claim decision in the matter. In reversing the Commission's final for reconciliation on legal grounds, not evidentiary or factual order, the court wrote that the agency “ignored” the other, grounds, by basing the agency ruling on a construction of the apparently applicable factors, while referring only to the previous order, albeit in a manner contrary to that advocated testimony of two witnesses whose conclusions were not by the Company. We do not understand that the term “special explained in the record, and “the Commission did not circumstances” means evidentiary grounds exclusively, and articulate its reasons for” deciding the issue based on the no party suggests that it does. single factor alone. In its remand, the court refrained from instructing the Commission to consider particular factors and The City and the Commission argue next that the examiner's from prohibiting its consideration of other factors, leaving the report in docket number 6350 was “clear” in affirmatively agency free to choose and “set forth the factors it considers and expressly prohibiting “prospective recovery of capacity relevant” together with an explanation of “how these factors charges,” meaning “all capacity charges not placed in issue in are evaluated in the present case.” Id. at 211–12. While the that docket.” We disagree. court nominally reversed the agency order for a want of “substantial evidence,” it is readily apparent that the court did The relevant part of the examiner's report declares: (1) so only because of the rather peculiar meaning “substantial the examiner agreed that capacity costs “should be treated evidence” bears in Texas administrative law—a meaning as a non-reconcilable expense prospectively”; (2) however, that generally incorporates into a single legal precept both that would be inequitable (for specified reasons) with arbitrary and capricious agency action under APTRA § 19(e) respect to “past payments” of such costs; (3) therefore, the (6) and a true want of substantial evidence under APTRA § examiner recommends that “prior” capacity-cost expenses be 19(e)(5). See generally Kerry McGrath, Substantial Evidence included “in the reconciliation balance.” These declarations Review in Texas—Still Insubstantial After All These Years, 44 are clear on one point—capacity costs paid before July Baylor L.Rev. 223 (1992). 31, 1985, the end of the reconciliation period in docket number 6350, would be reconcilable expenses under the

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examiner's recommendation. The declarations are not clear Commission's final order could not be reversed on the ground in the sense urged by the City and the Commission—that that it was “arbitrary and capricious.” In support of their they affirmatively and expressly prohibit reconciliation of the argument, the City and the Commission cite judicial decisions capacity costs presently in dispute. In fact, the City offers no that were decided on arbitrary and capricious grounds on an argument in support of its conclusion that the declarations apparent theory that these exhaust the possibilities and define are “clear” in excluding these capacity *902 costs from the limits of arbitrary and capricious action under APTRA § reconciliation; the Commission offers only the opaque 19(e)(6). See Lewis v. Metropolitan Sav. and Loan Ass'n, 550 generality that an administrative agency's interpretation of its S.W.2d 11 (Tex.1977); Railroad Comm'n v. Alamo Express, order is entitled to judicial deference. 158 Tex. 68, 308 S.W.2d 843 (1958); Public Util. Comm'n v. South Plains Elec. Coop., 635 S.W.2d 954 (Tex.App.— We find in the declarations nothing to suggest that the Austin 1982, writ ref'd n.r.e.). We disagree with the theory. In Commission, by adopting its examiner's report in docket any case, we are obliged to affirm the district-court judgment number 6350, prohibited reconciliation of capacity-cost if it is correct on any legal ground. We have discussed those expenses in the period July 31, 1985—April 25, 1986. Indeed, grounds above. the examiner's declarations reasonably imply in context that capacity costs paid in the period were entitled to the same For the reasons given, we overrule the Commission's only equitable justification because April 25, 1986, was the date point of error and the City's first point of error. when the examiner's declarations first acquired legal force and effect by the Commission's adoption of them. The terms of the examiner's recommendation do not suggest that the OFF–SYSTEM SALES REVENUES equitable considerations became inoperable on July 31, 1985, or that the expressions “past payments” and “prior” capacity- Section 23.23(b)(2)(A) requires that a utility maintain and cost expenses referred to a date other than the effective date provide the Commission information showing, among other of the order in docket number 6350. things, the utility's “off-system sales revenues.” These are revenues derived from a utility's sales of excess electric power The City and the Commission argue that the Company's to other utilities. Under § 23.23(b)(2)(B)(i), the net revenues contention amounts to no more than a complaint of from these sales may be set off against costs in calculating, “regulatory lag” during the nine months between the end for reconciliation purposes, a utility's “known or reasonably of the reconciliation period in docket number 6350 and predictable fuel costs.” the effective date of the final order in that contested case. And, they properly point out, losses occasioned merely In the reconciliation period of docket number 8588, the case by regulatory lag are not recoverable by a utility. We we now review, the Company received from off-system sales disagree with the theory. “Regulatory lag” refers to delay a net revenue equal to $3,099,564 above its costs for fuel and in the “decisional process” of a regulatory agency. Railroad fuel-related items. In its final order, the Commission declined Comm'n v. Lone Star Gas Co., 656 S.W.2d 421, 423 to deduct any part of this sum in calculating the Company's (Tex.1983). The Company does not complain of any delay in known or reasonably predictable fuel costs. The agency noted the “decisional process” in docket number 6350. It complains in its order, however, that in future reconciliation periods the instead of the apparently arbitrary meaning assigned in the agency would deduct 75 *903 percent of such revenues in present case to the word “prospectively” as that word was calculating known or reasonably predictable fuel costs. 3 In adopted in the Commission's final order in docket number its finding of fact 11, the Commission stated: (1) profits from 6350. That choice of meaning, and not any delay in the off-system sales result jointly from the Company's efforts to “decisional process,” fixed the time period in dispute. make such sales and from the availability of electric power generated from facilities paid for, in effect, by the Company's Finally, the City and the Commission argue that the customers; (2) consequently, in future reconciliation periods phrase “arbitrary and capricious,” recited in the district-court the Commission would assign 75 percent of the profits to the judgment as the basis for reversing the Commission's final customers' benefit and 25 percent to the Company's benefit to order, does not encompass the agency's failure to explain its encourage the Company to continue making such sales; and different treatment of capacity costs as compared to docket (3) for the reconciliation period covered in docket number number 6350. Hence, they contend, apparently, that the

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8588, however, the profits from off-system sales would continue to be excluded from the reconciliation calculations. The breadth of discretion implied by these statutory expressions is contradicted absolutely by the straightjacket In its second point of error, the City argues the Commission theory that the City erects upon an implication imputed to erred by not deducting all off-system sales revenues from the the term “total revenues.” Granted that some more particular Company's known and reasonably predictable fuel costs and provision in PURA might have denied the Commission contends the district court erred in affirming this aspect of the discretion to apportion net revenues from off-system sales, agency order. expressly or by necessary *904 implication, we believe the term “total revenues” is not such a provision. We believe, for example, that the legislature did not intend that any implication imputed to the term “total revenues” should deny Discussion and Holdings the Commission discretion to divide such revenues if the division was necessary to insure a rate that is “just and [4] The City argues the Commission was obliged to deduct reasonable” or to secure “efficiency” in utility operations and all profits from off-system sales, in calculating the Company's an acceptable “quality” in utility management. And we point known and reasonably predictable fuel costs, because the out that efficient operations and high-quality management agency lacked the power to divide such profits and to assign were the Commission's express objectives in choosing to one part to the Company's benefit and another part to its apportion sales revenues in this case. customers' benefit. The City bases its argument on PURA § 41(c) which defines the “net income” factor used to fix a The City suggests no general principle which prohibits the utility's rates under PURA § 39(a). 4 PURA § 41(c) defines division and apportionments made in the present case; the “net income” as “the total revenues of the public utility less City relies solely upon the implication it attributes to the term all reasonable and necessary expenses as determined by the “total revenues.” This implication is not the Commission's Commission.” (emphasis added). The substance of the City's interpretation of that expression, for section 23.23(b)(2)(B)(i) argument is that the statutory term “total revenues” implies of that rule contemplates consideration of other “conditions an entirety; hence it is not divisible in an agency proceeding or events” that bear upon a utility's fuel and fuel-related costs that pertains to ratemaking. We disagree. in the reconciliation context. The division and apportionment of future revenues in this case amounts to an agency In PURA the Commission received from the legislature interpretation of the fuel rule. We see nothing unreasonable powers that are broad and flexible: or ultra vires in that interpretation, and the fuel rule pertains ultimately to a utility's operating expenses, not its revenues. The commission has the general power to regulate and supervise the business of every public utility within its We, therefore, overrule the City's contention that the jurisdiction and to do all things, whether specifically Commission exceeded its power and discretion when it designated in this Act or implied herein, necessary and apportioned the off-system sales revenues. convenient to the exercise of this power and jurisdiction. [PURA § 16(a) ] The City contends there was insufficient evidence adduced The commission is hereby vested with all authority and in the agency proceeding to support a reasonable conclusion power ... to insure compliance with the obligations of that an allocation of a part of the benefit to the Company public utilities in this Act. [PURA § 37] would provide an incentive to make future sales of a like kind for the ultimate benefit of its customers. The argument It shall be the duty of the [commission] to insure that every refers to that part of the Commission's finding of fact 11 rate ... shall be just and reasonable. [PURA § 38] which stated the agency's reason for allocating 25 percent of the profits to the benefit of the Company in the future. The In fixing a reasonable return on invested capital, the Commission's declaration merely explained why the agency [commission] shall consider ... the efficiency of the utility's made the allocation; it does not purport to be the declaration operations, and the quality of the utility's management. of a fact inferred by the agency from evidence adduced in [PURA § 39(b) ]. the contested case. See Davis, supra. We overrule the City's contention.

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utility's “reasonable and necessary operating expenses” for [5] The City contends finally that providing the Company purpose of PURA § 39(a), while allowing concurrently for a an incentive to make off-system sales was not a relevant consideration of some of the stated factors listed in PURA § statutory factor in establishing reconcilable fuel costs; 39(b) “in addition to other applicable factors.” If nothing else, consequently, the Commission's decision on that basis the allocation refers directly to “the efficiency of the utility's amounted to an abuse of discretion under South Plains operation.” In the words of PURA § 39(a), it is at least another Electric Cooperative, 635 S.W.2d at 957. We disagree. “applicable factor.” We overrule the City's contention. In promulgating the fuel rule, the Commission responded For the reasons given, we overrule the City's second point of to the legislative prohibition against fuel-adjustment “pass- error. throughs.” It has not been suggested that the fuel rule, based in part upon predicted fuel costs with periodic reconciliations Finding no error, we affirm the district-court judgment. to actual costs, is an unreasonable rule or one out of harmony with PURA. We have held that the rule lay within the Commission's statutory power to enact at its discretion. All Citations The rule establishes, at bottom, an arrangement by which a hypothetical cost of fuel may be used to calculate a 851 S.W.2d 896

Footnotes 1 See 16 Tex.Admin.Code § 23.23(b)(2)–(8) (1981, since amended). 2 PURA § 43(g)(1) provides that “[a] rate or tariff set by the commission shall not authorize a utility to automatically adjust and pass through to its customers changes in fuel or other costs of the utility.” The provision was added by Acts 1983, 68th Leg., p. 647, ch. 146, § 2, effective August 29, 1983. 3 No party suggests that the futurity aspect of this part of the agency order should preclude judicial review. We see no reason why it should. See Bernard Schwartz, Administrative Law § 9.1, at 522–25 (2d ed. 1984). 4 In a determination of allowable fuel costs, the original version of the Fuel Rule listed six costs to be considered, plus “other costs associated with generated and purchased power.” 8 Tex.Reg. 3540 (1983) (16 Tex.Admin.Code § 23.23(b)(2)(B), since amended). The rule further instructed that “the commission shall consider revenues and costs from these other activities, including off-system sales, to assure that the ratepayers receive an appropriate portion of benefits associated with such revenues.” Id. (emphasis added). Nothing in PURA or in the Commission's current regulations deals explicitly with the calculation of off-system sales in the reconciliation of fuel costs. Although the current version of the Fuel Rule does not contain specific reference to off-system sales, the general language has been amended to require consideration of “other costs and revenues associated with generated or purchased power.” 16 Tex.Admin.Code § 23.23(b)(2)(B)(i) (emphasis added).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 City of Keller v. Wilson, 168 S.W.3d 802 (2005) 48 Tex. Sup. Ct. J. 848

Jay Doegey, Assistant City Attorney for the City of Corpus 168 S.W.3d 802 Christi, Texas, Corpus Christi, Theodore P. Gorski Jr., Office Supreme Court of Texas. of the City Attorney for City of Fort Worth, Mark G. Daniel, Evans Gandy Daniel & Moore, Fritz Quast, Taylor The CITY OF KELLER, Petitioner, Olson Adkins Sralla & Elam, LLP, Fort Worth, Monte v. Akers, Texas Municipal League, Austin, Michael A. Bucek, John W. WILSON, Grace S. Wilson, Johnny Senior Assistant City Attorney, Irving, Robert F. Brown, L. Wilson and Nancy A. Wilson, Respondents. Brown & Hofmeister, L.L.P., Richardson, Bruce S. Powers, Assistant County Attorney, Michael A. Stafford, Harris No. 02–1012. | Argued Oct. 19, County Attorney, Houston, for Amicus Curiae. 2004. | Decided June 10, 2005. | Rehearing Denied Sept. 2, 2005. Opinion

Synopsis Justice BRISTER delivered the opinion of the Court, in Background: Landowners brought action against city to which Chief Justice JEFFERSON, Justice HECHT, Justice recover damages for inverse condemnation and for violations WAINWRIGHT, and Justice GREEN joined, and in which of Water Code. The 96th District Court, Tarrant County, Justice O'NEILL and Justice MEDINA joined as to Parts I Jeff Walker, J., entered judgment on jury verdict in favor of through IV. landowners. City appealed. The Fort Worth Court of Appeals, 86 S.W.3d 693, affirmed. City filed petition for review. Must an appellate court reviewing a verdict for legal sufficiency start by considering all the evidence or only part? Over the years, we have stated both as the proper scope of review. While some see the standards as opposing, we Holdings: The Supreme Court, Brister, J., held that: disagree; like a glass that is half-full or half-empty, both arrive at the same point regardless of where they start. [1] both the “exclusive” and “inclusive” standards for no- evidence review are correct, in that the two standards reach But both standards must be properly applied. Rules and the same result, and reason sometimes compel that evidence must be credited or discarded whether it supports a verdict or contradicts [2] no evidence established that city's approval of revised it. Under either scope of review, appellate courts must drainage plans, which resulted in flooding of landowners' view the evidence in the light favorable to the verdict, farm property, was an intentional taking. crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could Judgment of Court of Appeals reversed; case remanded. not. As we find the evidence here meets neither standard, we reverse. O'Neill, J., filed concurring opinion in which Medina, J., joined. I. Factual and Procedural History

Attorneys and Law Firms The City of Keller is one of several fast-growing communities on the outskirts of *808 Fort Worth. 1 As part of that growth, *807 Dabney D. Bassel, Larry Bracken, Law Snakard & the City approved plans for two new subdivisions, Estates of Gambill, P.C., Fort Worth, Douglas H. Conner III, L. Stanton Oak Run and Rancho Serena, including plans for storm water Lowry, Boyle & Lowry, L.L.P., Irving, for petitioner. drainage. James B. Barlow, Barlow & Garsek, Fort Worth, Robert L. Russell Bush, Bush & Morrison, Arlington, David R. Casey, The Wilsons own property southeast of the new subdivisions, Hurst, for respondents. with a tract owned by Z.T. Sebastian lying between. Before development, surface water flowed generally north to south from the land where the subdivisions were built, across the

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Sebastian and Wilson properties, and into the Little Bear only the evidence and inferences that tend to support the Creek Watershed. finding and disregard all evidence and inferences to the contrary.” 5 The City challenges *809 this omission as In 1991, the City adopted a Master Drainage Plan providing applying the wrong scope of review. for drainage easements across both the Sebastian and Wilson properties, and thence into Little Bear Creek. The City's codes We have on many occasions stated the scope of review require developers to comply with the Master Plan, to provide precisely as the court of appeals says (the “exclusive” drainage for a 100–year rain event, and to avoid increasing standard). 6 But we have also stated that a reviewing court the volume or velocity of water discharged upon downhill must consider “all of the evidence” in the light favorable to properties. the verdict (the “inclusive” standard). 7 Sometimes we have The developers of Oak Run and Rancho Serena submitted mentioned neither reviewing all evidence nor disregarding plans to the City indicating they would buy a drainage some part of it. 8 Finally, we have sometimes expressly easement and build a ditch forty-five feet wide and more mentioned both. 9 than two hundred yards long across the Sebastian property, and deed both to the City upon completion. 2 The plans also Although this Court has used both the exclusive and included detention basins on the subdivision properties, but the inclusive standards interchangeably over the years, omitted any drainage easement or ditch across the Wilsons' commentators say the two are different. 10 Because this property. The City's director of public works approved *810 important issue is dispositive here, we address it in the developers' plans, and the City accepted the works on some detail, and reserve for another day the City's arguments completion. that a governmental entity cannot be liable for approving a developer's plans, or accepting rather than constructing the In accordance with the Master Plan, the City built a box works at issue. culvert south of the Wilsons' property. But as the developers' drainage ditch ended at the Wilsons' north property line, there was no link between the two. The Wilsons alleged and the jury found this omission increased flooding on the Wilsons' II. Contrary Evidence That Cannot Be Disregarded property, ruining eight acres of farmland the jury valued at The question presented here is not a new one. More than almost $300,000. 40 years ago, then Justice Calvert 11 addressed the standards [1] To recover damages for inverse condemnation, the for reviewing legal and factual sufficiency in the most-cited Wilsons had to prove the City intentionally took or damaged law review article in Texas legal history. 12 Frustrated that their property for public use, or was substantially certain that despite this Court's efforts to explain those standards “a would be the result. 3 They do not allege the City intentionally growing number of recent decisions indicate a continuing flooded their land, but do allege it approved revised plans that misunderstanding,” 13 the author summarized and attempted it knew were substantially certain to have that effect. to clarify Texas law up to 1960. 14 The article's impact remains substantial today, having been cited more than 100 The City contends no evidence supports the jury's finding of times by Texas courts in the last five years. an intentional taking. It presented evidence that engineers for the developers, for the City, and for an outside firm the City According to the article: retained all certified that the revised drainage plan complied with the City's codes and regulations—including the ban “No evidence” points must, and against increasing downstream runoff. Thus, the City asserts may only, be sustained when the it had no reason to be substantially certain the opposite would record discloses one of the following occur, until it did. situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of A divided court of appeals rejected this contention. 4 In its evidence from giving weight to the legal sufficiency review, the court refused to consider the only evidence offered to prove a vital various engineers' certifications because “we are to consider

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fact; (c) the evidence offered to prove evidence may not appear until all the evidence is reviewed in a vital fact is no more than a mere context. scintilla; (d) the evidence establishes conclusively the opposite of the vital [5] [6] For example, publications alleged to be defamatory 15 must be viewed as a whole—including accompanying fact. statements, headlines, pictures, and the general tenor and reputation of the source itself. 20 A court reviewing We have quoted a similar formulation on many occasions. 16 legal sufficiency cannot disregard parts of a publication, considering only false statements to support a plaintiff's Notably, Justice Calvert then proceeded to put the question before us in the proper context: verdict or only true ones to support a defense verdict. 21

It is in deciding “no evidence” [7] [8] Similarly, reviewing courts must construe contracts points in situation (c) that the courts as a whole; we do not consider only the parts favoring one follow the further rule of viewing the party and disregard the remainder, as that would render the evidence in its most favorable light in latter meaningless. 22 Even writings executed at different support of the finding of the vital fact, times must be considered together if they pertain to the same considering only the evidence and the transaction. 23 inferences which support the finding and rejecting the evidence and the [9] It is not just writings that reviewing courts must inferences which are contrary to the consider in context. For example, in reviewing intentional finding. 17 infliction of emotional distress claims for legal sufficiency, “we consider the context and the relationship between the [2] Clearly, the traditional rule in Texas has never been parties.” 24 Acts that might constitute outrageous conduct that appellate courts must reject contrary evidence in every no-evidence review. Instead, the traditional scope of when dealing with a hearing-impaired consumer 25 may review does not disregard contrary evidence if there is no be legally insufficient between *812 business parties. 26 favorable evidence *811 (situation (a) above), or if contrary In our no-evidence reviews of successful claims, we have evidence renders supporting evidence incompetent (situation invariably reviewed not just evidence showing the conduct (b) above) or conclusively establishes the opposite (situation was outrageous, but also evidence showing that, in context, (d) above). it was not. 27

[3] [4] As the following examples show, this has remained [10] More generally, evidence cannot be taken out of context the rule since. We do not presume to categorize all in a way that makes it seem to support a verdict when in fact circumstances in which contrary evidence must be considered it never did. 28 If a witness's statement “I did not do that” in a legal sufficiency review. Evidence can be disregarded is contrary to the jury's verdict, a reviewing court may need whenever reasonable jurors could do so, 18 an inquiry that is to disregard the whole statement, but cannot rewrite it by necessarily fact-specific. But it is important that when courts disregarding the middle word alone. use the exclusive standard and disregard contrary evidence, they must recognize certain exceptions to it. [11] Thus, if evidence may be legally sufficient in one context but insufficient in another, the context cannot be disregarded even if that means rendering judgment contrary A. Contextual Evidence to the jury's verdict. Either “evidence contrary to the verdict” must be defined to exclude material contextual evidence, or In Justice Calvert's first situation—a complete absence of it must be an exception to the general rule. evidence of a vital fact—it is generally irrelevant whether a reviewing court considers contrary evidence. 19 If supporting evidence is absent, opposing evidence cannot change that B. Competency Evidence result. But in a number of cases, the lack of supporting

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[12] [13] It has long been the rule in Texas that As noted above, Justice Calvert believed the exclusive incompetent evidence is legally insufficient to support a standard applied only when a no-evidence challenge asserted judgment, even if admitted without objection. 29 Thus, the evidence was no more than a scintilla. 39 But he went on evidence showing it to be incompetent cannot be disregarded, to note a “variation” that required contrary inferences to be even if the result is contrary to the verdict. If the rule were considered when the equal-inference rule applied. 40 otherwise, incompetent evidence would always be legally sufficient, because the evidence showing it to be incompetent [18] [19] In claims or defenses supported only by meager could never be considered. circumstantial evidence, the evidence does not rise above a scintilla (and thus is legally insufficient) if jurors would Thus, for example, if an eyewitness's location renders a clear have to guess whether a vital fact exists. 41 “When the view of an accident “physically impossible,” it is no evidence circumstances are equally consistent with either of two facts, of what occurred, even if the eyewitness thinks otherwise. 30 neither fact may be inferred.” 42 In such cases, we must “view Similarly, an employee's testimony that he was in the course each piece of circumstantial *814 evidence, not in isolation, and scope of his employment is legally insufficient to support a verdict against his employer if the evidence shows that legal but in light of all the known circumstances.” 43

conclusion to be incompetent. 31 Justice Calvert argued there was “no necessity for the variation” because drawing an inference based on meager [14] [15] This exception frequently applies to expert evidence was unreasonable whether or not the reviewing testimony. When expert testimony is required, lay evidence court considered the opposing inferences. 44 Nevertheless, he supporting liability is legally insufficient. 32 In *813 recognized that “[t]he opposing inference is present and it such cases, a no-evidence review cannot disregard contrary evidence showing the witness was unqualified to give an does no harm to note its presence.” 45

opinion. 33 And if an expert's opinion is based on certain In subsequent cases this Court has continued to note rather assumptions about the facts, we cannot disregard evidence than disregard the presence of equal but opposite inferences, showing those assumptions were unfounded. 34 often because lower courts have overlooked them. Thus, for example, one might infer from cart tracks in spilled [16] After we adopted gate-keeping standards for expert macaroni salad that it had been on the floor a long testimony, 35 evidence that failed to meet reliability standards time, but one might also infer the opposite—that a sloppy was rendered not only inadmissible but incompetent as shopper recently did both. 46 Similarly, when injury or death well. 36 Thus, an appellate court conducting a no-evidence occurs without eyewitnesses and only meager circumstantial review cannot consider only an expert's bare opinion, but evidence suggests what happened, we cannot disregard other must also consider contrary evidence showing it has no meager evidence of equally likely causes. 47 scientific basis. 37 Similarly, review of an expert's damage estimates cannot disregard the expert's admission on cross- [20] Thus, when the circumstantial evidence of a vital fact 38 is meager, a reviewing court must consider not just favorable examination that none can be verified. but all the circumstantial evidence, and competing inferences [17] Thus, evidence that might be “some evidence” when as well. considered in isolation is nevertheless rendered “no evidence” when contrary evidence shows it to be incompetent. Again, such evidence cannot be disregarded; it must be an exception D. Conclusive Evidence either to the exclusive standard of review or to the definition of contrary evidence. [21] [22] Next, Justice Calvert noted that Texas courts conducting a no-evidence review traditionally do not disregard contrary evidence that conclusively establishes the

C. Circumstantial Equal Evidence opposite of a vital fact. 48 He argued that this is to some extent not a “true” no-evidence claim, as proponents may have to show not only that no evidence supports the verdict

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but that the opposite was proved as a matter of law. 49 or allow *816 jurors to infer otherwise. 62 Evidence is There are several types of conclusive evidence. First, an conclusive only if reasonable people could not differ in their appellate court conducting a legal sufficiency review cannot conclusions, 63 a matter that depends on the facts of each “disregard undisputed evidence that allows of only one case. logical inference.” 50 By definition, such evidence can be viewed in only one light, and reasonable jurors can reach only [26] There is another category of conclusive evidence, in one conclusion from it. Jurors are not free to reach a verdict which the evidence is disputed. Undisputed evidence and contrary to such evidence; 51 indeed, uncontroverted issues conclusive evidence are not the same—undisputed evidence may or may not be conclusive, and conclusive evidence may *815 need not be submitted to a jury at all. 52 or may not be undisputed.

Reviewing legal sufficiency in such cases encompasses Thus, for example, in Murdock v. Murdock, we found no a general no-evidence review, because if some evidence evidence to support a verdict establishing the defendant's supports the verdict then the contrary evidence was not paternity when blood tests conclusively proved he was not “undisputed.” But the review does not stop there; the evidence must also have only one logical inference. Undisputed the child's father. 64 The evidence was directly disputed—the evidence that reasonable jurors could disbelieve has two: (1) child's mother testified she had conjugal relations with no one it is true, or (2) it is not. else during the relevant time. 65 Nevertheless, we held there was no evidence to support the paternity verdict because of [23] Most often, undisputed contrary evidence becomes conclusive evidence to the contrary. 66 conclusive (and thus cannot be disregarded) when it concerns physical facts that cannot be denied. Thus, no evidence Similarly, in Texas & New Orleans Railroad Co. v. Compton, supports an impaired-access claim if it is undisputed that we found no evidence that a railroad's negligence caused an access remains along 90 percent of a tract's frontage. 53 automobile to slam into the sixtieth car of a slow-moving Evidence that a buyer believed a product had been repaired train. 67 Again, the evidence was hotly disputed—while is conclusively negated by an accompanying letter to railroad witnesses testified that warning signs were in place the contrary. 54 And an insured's liability has not been at the crossing, the car's driver and a passenger testified they determined by an “actual trial” if the insured did not appear, saw nothing, and would have been able to stop if they had. 68 present evidence, or challenge anything presented by his Nevertheless, we held there was no evidence to support the opponent. 55 claim because, if the driver could not see the side of a train before he hit it, he could not have seen a crossing sign [24] Undisputed contrary evidence may also become either. 69 conclusive when a party admits it is true. Thus, a claimant's admission that he was aware of a dangerous premises Of course, there are few instances in which disputed evidence condition is conclusive evidence he needed no warning about is conclusive, and many instances in which undisputed it. 56 Similarly, an ex-employee's admission that she obtained evidence is not. As our sister court has noted, testimony other employment may prove conclusively that she did not by a paid informant is legally sufficient to support a detrimentally rely on a defendant's promise to re-hire her. 57 conviction, even if “[t]wenty nuns testify that the defendant And jurors may not find that an indictment was based on was with them at the time, far from the scene of the a defendant's misleading report when the district attorney crime ... [and] [t]wenty more nuns testify that they saw the

admits it was his own mistake. 58 informant commit the crime.” 70 But a more famous clerical hypothetical by Judge Learned Hand shows the opposite [25] It is impossible to define precisely when undisputed limit: evidence becomes conclusive. For example, an injured employee's return to work may prove conclusively that an If, however, it were proved by twenty bishops that either injury was not total, 59 or it may not. 60 Circumstances in party, when he used the words [in a contract], intended which a body is found may conclusively establish suicide, 61

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something else than the usual meaning which the law imposes upon them, he would still be held.... 71 Long before gross negligence had to meet a clear-and- While jurors may generally believe either sinners or saints, convincing burden, we recognized in Burk Royalty Co. v. their discretion is limited when it is proved beyond question Walls that no-evidence review of such findings had to include that an “eyewitness” was actually far away in prison or totally “all of the surrounding facts, circumstances, and conditions, blind on the day of the crime. not just individual elements or facts.” 78 As then Chief Justice Greenhill noted in concurring, speeding and running [27] [28] Proper legal-sufficiency review prevents a red light may not be legally sufficient evidence of gross reviewing courts from substituting *817 their opinions negligence if one's wife and daughter are bleeding to death on credibility for those of the jurors, but proper review in the back seat. 79 Reviewing courts assessing evidence of also prevents jurors from substituting their opinions for conscious indifference cannot disregard part of what a party undisputed truth. When evidence contrary to a verdict is was conscious of. 80 conclusive, it cannot be disregarded.

For the same reasons, the exclusive standard of review has proven problematic in insurance bad-faith cases. Liability E. Clear–and–Convincing Evidence in *818 such cases requires proof that the insurer denied coverage after it became reasonably clear. 81 But that [29] Since the time of Justice Calvert's article, new claims standard will always be met if reviewing courts must and burdens of proof have arisen that require additions to the four types of no-evidence review Justice Calvert disregard any evidence that coverage was unclear. 82 considered exhaustive. Beginning with the United States Subsequent cases show that reviewing courts are in fact Supreme Court's opinion in Jackson v. Virginia, appellate looking at all the evidence to determine whether coverage was courts have recognized that, while “one slender bit of reasonably clear. 83 evidence” may be all a reviewing court needs to affirm a verdict based on the preponderance of the evidence, a higher This problem arises in other contexts as well. In 72 discrimination cases, discharged employees will never have burden of proof requires a higher standard of review. As we recently stated, the standard for legal sufficiency works in to prove that the reason given for termination was a tandem with the standard of review—“whenever the standard pretext if no-evidence review must disregard that reason. 84 of proof at trial is elevated, the standard of appellate review Government officials will never be entitled to immunity must likewise be elevated.” 73 If the rule were otherwise, if we consider only evidence suggesting they should have legally sufficient evidence to support a preponderance-of-the- acted differently. 85 And limitations will never run under the evidence verdict would satisfy the higher burdens as well, discovery rule if reviewing courts must disregard all evidence thus rendering their differences meaningless. 74 that claimants knew of their claims. 86

Accordingly, we have held that a legal sufficiency review This is not to say a reviewing court may credit a losing party's must consider all the evidence (not just that favoring explanations or excuses if jurors could disregard them. For the verdict) in reviewing cases of parental termination, 75 example, while an insurer's reliance on an expert report may defamation, 76 and punitive damages. 77 In such cases, again, foreclose bad faith recovery, 87 it will not do so if the insurer evidence contrary to a verdict cannot be disregarded. had some reason to doubt the report. 88 But a reviewing court cannot review whether jurors could reasonably disregard a losing party's explanations or excuses without considering what they were. F. Consciousness Evidence

[30] Further, we have had to particularize legal-sufficiency review in cases involving what a party knew or why it took a III. Contrary Evidence That Must Be Disregarded certain course, as they are not amenable to review under the exclusive standard.

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As trials normally focus on issues that jurors could decide that the defendant's speed was 80 miles per hour, without either way, reviewing *819 courts must disregard evidence mentioning his own testimony to a speed half that. 94 contrary to the verdict far more often than they must consider it. Just as no-evidence review that starts by disregarding [34] [35] Nor is it necessary to have testimony contrary evidence often must end up considering considerably from both parties before jurors *820 may disbelieve more, no-evidence review that begins by considering all the either. Jurors may disregard even uncontradicted and evidence must usually end up considering considerably less. unimpeached testimony from disinterested witnesses. 95 Thus, an architect's uncontradicted testimony that he relied Again, we do not presume to categorize all circumstances in on a 20–year warranty was not binding on jurors when the which contrary evidence must be disregarded; a few examples bid specifications he prepared included only much shorter serve to demonstrate that even under the inclusive standard, viewing all the evidence in a light favorable to the verdict warranties. 96 Nor was an insured's uncontradicted testimony often requires that much of it be disregarded. about lost furnishings binding on jurors when the fire scene contained several indications of arson but few of burnt furniture. 97 Even uncontroverted expert testimony does not bind jurors unless the subject matter is one for experts A. Credibility Evidence alone. 98 [31] [32] Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. 89 They [36] [37] [38] [39] Of course, “[t]he jury's may choose to believe one witness and disbelieve another. 90 decisions regarding credibility must be reasonable.” 99 Reviewing courts cannot impose their own opinions to the Jurors cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions contrary. 91 and inconsistencies, and could have been readily [33] Most credibility questions are implicit rather than controverted. 100 And as noted above, they are not free to explicit in a jury's verdict. Thus, reviewing courts must believe testimony that is conclusively negated by undisputed assume jurors decided all of them in favor of the verdict if facts. But whenever reasonable jurors could decide what reasonable human beings could do so. Courts reviewing all testimony to discard, a reviewing court must assume they did the evidence in a light favorable to the verdict thus assume so in favor of their verdict, and disregard it in the course of that jurors credited testimony favorable to the verdict and legal sufficiency review. disbelieved testimony contrary to it. 92

For example, viewing the evidence in the light favorable to B. Conflicting Evidence the verdict means that if both parties in a traffic accident testify they had the green light, an appellate court must [40] [41] It is the province of the jury to resolve conflicts presume the prevailing party did and the losing party did in the evidence. 101 Accordingly, courts reviewing all the not. If the parties to an oral contract testify to conflicting evidence in a light favorable to the verdict must assume terms, a reviewing court must presume the terms were those that jurors resolved all conflicts in accordance with that asserted by the winner. When all the evidence is viewed in verdict. 102 the light most favorable to the jury verdict, some of it must be completely discounted. Though not disregarded at the outset, Again, this has always been the case even in those cases the end result is the same. using the inclusive scope of review. For example, in such cases we have sometimes detailed only the evidence that This has always been our practice in cases using the inclusive supported a jury's fraud finding. 103 We have affirmed a scope of review. Thus, we have concluded that a bailee bad-faith verdict for legal sufficiency despite “significant sold cotton without the bailor's consent, despite the former's evidence” that the insurer acted in *821 good faith. 104 We denials, because the jury verdict favored the latter. 93 And we have found some evidence of lost profits, even though income have affirmed a gross negligence verdict based on testimony tax returns showed the contrary. 105 And we have affirmed

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a jury's negligence finding despite a defendant's evidence and disregard all other inferences in their legal sufficiency 106 review. asserting it could not have prevented the accident.

In none of these cases did we state that the scope of review required us to disregard evidence contrary to the verdict; IV. Reconciling the Standards instead, we started by considering the entire record in each. But in each case we either discounted or never mentioned [45] Having noted the dual lines of authority stating the conflicting evidence contrary to the verdict because viewing scope of no-evidence review, and the proper application and the evidence in the light favorable to the verdict required us exceptions to each, we turn to the question of which one is to do so. correct. For the reasons *822 discussed below, we believe the answer is both. Of course, it is not always clear whether evidence is conflicting. Evidence is not conflicting just because the parties cannot agree to it. For example, evidence that a A. Goals: The Standards Must Be The Same hospital controlled a doctor's rotation and patient assignments raises no material conflict with evidence that a different [46] Whether a court begins by reviewing all the evidence entity controlled the details of medical treatment, as only or disregarding part in a legal-sufficiency review, there can the latter is material in a malpractice case. 107 Similarly, be no disagreement about where that review should end. If evidence showing the terms of one loan does not conflict the evidence at trial would enable reasonable and fair-minded with undisputed evidence that the parties never reached an people to differ in their conclusions, then jurors must be agreement regarding the terms of another. 108 allowed to do so. 112 A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence [42] But in every circumstance in which reasonable jurors falls within this zone of reasonable disagreement. 113 could resolve conflicting evidence either way, reviewing courts must presume they did so in favor of the prevailing [47] Similarly, there is no disagreement about how a party, and disregard the conflicting evidence in their legal reviewing court should view evidence in the process of that sufficiency review. review. Whether a reviewing court starts with all or only part of the record, the court must consider evidence in the light most favorable to the verdict, and indulge every reasonable C. Conflicting Inferences inference that would support it. 114 But if the evidence allows of only one inference, neither jurors nor the reviewing court [43] Even if evidence is undisputed, it is the province of may disregard it. 115 the jury to draw from it whatever inferences they wish, so long as more than one is possible and the jury must not Given these premises, it is no coincidence that the two simply guess. Thus, in product liability cases jurors may find standards should reach the same result—indeed they must. evidence of a defect from subsequent modifications, even Any scope of appellate review smaller than what reasonable if there were plenty of other reasons for the changes. 109 jurors could believe will reverse some verdicts that are Even if a defendant admits approaching an intersection from perfectly reasonable; any scope of review larger than what the wrong way on a one-way street, jurors may infer the reasonable jurors could believe will affirm some verdicts that plaintiff failed to keep a proper lookout, as that is one possible are not. inference from the accident itself. 110 Similarly, jurors may infer that relatives tore down posters of a missing child to [48] Further, the two must coincide if this Court is to assist the child's father, even though another inference was perform its constitutional duties. Although factual sufficiency that the signs simply embarrassed them. 111 has been the sole domain of the intermediate appellate courts in Texas since 1891, our jurisdiction has always included [44] Accordingly, courts reviewing all the evidence in a legal sufficiency, as that is a question of law, not of fact. 116 light favorable to the verdict must assume jurors made all Construing either standard to require us to do less would be inferences in favor of their verdict if reasonable minds could,

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just as unconstitutional as construing either to allow us to do opinions doing so usually cite to general no-evidence cases in more. which no judgment n.o.v. was involved. 123

This is not to say judges and lawyers will always agree The one exception in which both standards do not expressly whether evidence is legally *823 sufficient. As discussed appear is in the scope of review for summary judgments. more fully below, reasonable people may disagree about Here, there is only one standard—a reviewing court must what reasonable jurors could or must believe. But once those examine the entire record in the light most favorable to boundaries are settled, any standard of review must coincide the nonmovant, indulging every reasonable inference and with those boundaries—affirming jury verdicts based on resolving any doubts against the motion. 124 Reviewing evidence within them and reversing jury verdicts based on courts do not disregard the evidence supporting the motion; evidence that is not. Any standard that does otherwise is *825 if they did, all summary judgments would be reversed. improperly applied.

In practice, however, a different scope of review applies when a summary judgment motion is filed without supporting B. Other Motions: The Standards Must Be The Same evidence. 125 In such cases, evidence supporting the motion is effectively disregarded because there is none; under the [49] Just as the scope of no-evidence review must coincide rule, it is not allowed. Thus, although a reviewing court must with its goals, the scope of review should not depend upon the consider all the summary judgment evidence on file, in some motion in which it is asserted. Judgment without or against cases that review will effectively be restricted to the evidence a jury verdict is proper at any course of the proceedings contrary to the motion. only when the law does not allow reasonable jurors to decide otherwise. Accordingly, the test for legal sufficiency The standards for taking any case from the jury should be the should be the same for summary judgments, directed verdicts, same, no matter what motion is used. If only one standard judgments notwithstanding the verdict, and appellate no- were proper, we would not expect both to appear in cases evidence review. reviewing directed verdicts, judgments notwithstanding the verdict, and summary judgments. But both do. Our statements of the standard for reviewing a directed verdict present the same mixed bag found with general no- evidence review. We have most often used the exclusive standard, stating that courts reviewing directed verdicts must C. Federal Courts: The Standards Are The Same consider only evidence supporting the nonmovant's case The federal courts have had a similar split of authority and disregard all contrary evidence. 117 But we have also between the inclusive and exclusive standards for scope stated that reviewing courts should use the inclusive standard, of review. But no longer—the United States Supreme considering all the evidence in a light contrary to the directed Court recently concluded in Reeves v. Sanderson Plumbing verdict. 118 And we have sometimes stated both, requiring Products, Inc. that the two tests are the same. 126 reviewing courts to consider all the evidence in a light contrary to the directed verdict and then to disregard all Under Rule 50 of the federal rules of procedure, a court should conflicting evidence that supports it. 119 render judgment as a matter of law when “there is no legally sufficient evidentiary basis for a reasonable jury to find for By contrast, cases concerning judgments non obstante that party on that issue.” 127 In deciding whether all or only veredicto most often utilize the inclusive scope of review. part of the evidence should be considered, the Supreme Court Beginning with the 1931 amendment authorizing trial judges stated: to grant them, 120 we have generally reviewed such orders by considering all the evidence in a light favorable to the *824 verdict that was set aside. 121 In later years we The Courts of Appeals have articulated differing formulations as to what evidence a court is to consider in have sometimes adopted the exclusive standard, 122 but our ruling on a Rule 50 motion. Some decisions have stated that review is limited to that evidence favorable to the

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nonmoving party, while most have held that review extends the verdict only if it is so against the to the entire record, drawing all reasonable inferences in great weight and preponderance of the favor of the nonmovant. evidence that it is clearly wrong and unjust. 131 On closer examination, this conflict seems more semantic than real. Those decisions holding that review under Rule 50 should be limited to evidence favorable to But there have always been exceptions to this distinction. 132 the nonmovant appear to have their genesis in Wilkerson As demonstrated in Parts II and III above, it is generally v. McCarthy 128 . In Wilkerson, we stated that “in passing true that the result of legal-sufficiency review is to disregard upon whether there is sufficient evidence to submit an contrary evidence, but there are exceptions when a reviewing issue to the jury we need look only to the evidence and court cannot. It is not surprising that in drawing the general reasonable inferences which tend to support the case distinction between legal and factual sufficiency, courts have not complicated that distinction by listing the several of” the nonmoving party. 129 But subsequent decisions exceptions in which the scope of review—though not the have clarified that this passage was referring to the standard of review—may overlap. evidence to which the trial court should give credence, not the evidence that the court should review. In the Second, it has been argued that the exclusive standard “is analogous context of summary judgment under Rule 56, an important prophylactic” against invasion of the jury's we have stated that the court must review the record province, as appellate judges are less likely to consider “taken as a whole.” And the standard for granting contrary evidence when they should not if the exclusive summary judgment “mirrors” the standard for judgment as a matter of law, such that “the inquiry under each is the standard is used. 133 But if that is true, the opposite should same.” It therefore follows that, in entertaining a motion also be the case—appellate courts are less likely to consider for judgment as a *826 matter of law, the court should contrary evidence when they must (as shown in Part II) if the exclusive standard is used. No matter which standard is used, review all of the evidence in the record. 130 appellate courts must take care not to consider or disregard We address the Supreme Court's conclusion as to the too little or too much. most appropriate standard below; the relevant point here is its conclusion that differences between the inclusive and *827 Conversely, several factors appear to favor application exclusive standards are more semantic than real. of the inclusive standard. First, when we have said “we must look only at that evidence which tends to support the judgment,” 134 we could not have been speaking literally; D. Objections: The Standards Are Not The Same no glasses filter evidence, and judges cannot abandon such judgments to law clerks or litigants. It is often hard to While we have used the two standards for the scope of review say whether evidence does or does not support a verdict interchangeably for many years in many different contexts, several arguments suggest they are not the same. —the same facts may support different conclusions, 135 or may support one part of a verdict but not another. 136 Nor First, the courts of appeals often use the two standards can evidence supporting a verdict be identified by which in illustrations of the difference between legal and factual party offered it—parties depend on admissions and cross- sufficiency, with the exclusive standard tied to the former and examination during their opponent's case, and minimize the inclusive standard to the latter: damaging evidence by presenting it during their own. As a practical matter, a court cannot begin to say what evidence When [reviewing] legal sufficiency, supports a verdict without reviewing it all. we consider only the evidence and inferences that tend to support the Second, an appellate court that begins by disregarding one award of damages and disregard party's evidence may strike many citizens as extending all evidence and inferences to the something less than justice for all. Concerns about open contrary.... When we review factual government and open courts suggest an appellate process sufficiency, we consider and weigh that considers all the evidence, though deferring to the jury's all of the evidence and will set aside verdict. While there is some dispute whether Lady Justice

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should wear a blindfold, 137 the metaphor was surely never Supreme Court will conclude that the intended to suggest that justice disregards the facts. evidence supporting a finding of a vital fact has no probative force, and In sum, the exclusive standard is helpful in recognizing in reaching the conclusion through the distinctive roles of judge and jury, intermediate and application of the rule will thus hold, supreme court. By contrast, the inclusive standard is helpful in effect, that the trial judge who in recognizing what courts actually do, and must be seen to overruled a motion for instructed do. Both are important; we should avoid choosing between verdict, the twelve jurors who found them if we can. the existence of the vital fact, the three justices of the Court of Civil Appeals who overruled a “no evidence” point of error and four dissenting justices of E. Conclusion: The Standards Are The Same the Supreme Court are not men 138 of As both the inclusive and exclusive standards for the scope “reasonable minds.” 139 of legal-sufficiency review have a long history in Texas, as both have been used in other contexts to review matter-of-law It is not hubris that occasionally requires an appellate court motions, as the federal courts have decided the differences to find a jury verdict has no reasonable evidentiary basis. As between the two are more semantic than real, and as both— Justice Frankfurter stated long ago: properly applied—must arrive at the same result, we see no compelling reason to choose among them. Only an incompetent or a wilful judge would take a case from the jury [50] [51] The key qualifier, of course, is “properly when the issue should be left to the applied.” The final test for legal sufficiency must always jury. But since questions of negligence be whether the evidence at trial would enable reasonable are questions of degree, often very and fair-minded people to reach the verdict under review. nice differences of degree, judges of Whether a reviewing court begins by considering all the competence and conscience have in evidence or only the evidence supporting the verdict, legal- the past, and will in the future, disagree sufficiency review in the proper light must credit favorable whether proof in a case is sufficient evidence if reasonable jurors could, and disregard contrary to demand submission to the jury. The evidence unless reasonable jurors could not. fact that [one] thinks there was enough to leave the case to the jury does not While judges and lawyers often disagree about legal indicate that the other [is] unmindful sufficiency in particular cases, *828 the disagreements are of the jury's function. The easy but almost always about what evidence jurors can or must credit timid way out for a trial judge is to and what inferences they can or must make. It is inevitable leave all cases tried to a jury for jury in human affairs that reasonable people sometimes disagree; determination, but in so doing he fails thus, it is also inevitable that they will sometimes disagree in his duty to take a case from the jury about what reasonable people can disagree about. This is not when the evidence would not warrant a new problem; Justice Calvert noted it almost fifty years ago: a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless The rule as generally stated is that if judge. 140 reasonable minds cannot differ from the conclusion that the evidence lacks probative force it will be held to be the legal equivalent of no evidence. V. Application to the Facts The application of the rule can lead to strange results. It is theoretically It remains to apply the scope of review to the facts presented. possible, and sometimes not far from actual fact, that five members of the

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[52] A majority of the court of appeals affirmed the verdict Second, ending a ditch at a neighbor's property line may for the Wilsons, finding legally sufficient evidence that the be evidence that a defendant was substantially certain of City knew increased flooding on the Wilsons' property was the result in some cases, but not in the context of this substantially certain to occur. 141 The majority pointed to one. City witnesses admitted knowing development would the following proof. First, the Wilsons' expert testified that increase runoff at the head of this drainage system, but not flooding at its foot. Calculating the effect of detention ponds the revised plan was certain to *829 create flooding. 142 and absorption in a grassy drainage ditch forty-five feet Second, as the City admittedly knew that development would wide and over two hundred yards long required hydrological increase runoff and the Sebastian ditch would channel it formulas, computer models, and mathematical calculations. toward the Wilsons, so it knew “with absolute certainty” The omission of the ditch across the Wilsons' property that flooding would be the result. 143 Third, the City “did obviously raised concerns that the City investigated, but was not explain” why the Master Plan required a drainage ditch no evidence that the City knew the advice it received in across the Wilsons' property but the revised plan did not, response was wrong. thus allowing jurors to infer that the City knew this omission would cause flooding. 144 The Wilsons also point to a letter Sebastian's attorney wrote the City demanding indemnity in case the new ditch flooded [53] Of course, the City did explain why it approved the new the Wilsons. But attorneys must protect a client from potential plan—because three sets of engineers said the omitted ditch liability whether it is *830 real or imagined—and justly so. was unnecessary—but the court felt compelled by the scope In the letter, the attorney never purports to be an expert in of review to disregard that evidence. hydrology, or cite the opinions of anyone who was. This letter may have required the City to investigate, but again is no For several of the reasons stated earlier, we believe the court evidence it knew the advice it received was wrong. 146 of appeals did not properly apply the scope of review. The critical question in this case was the City's state of mind— Our concurring colleagues believe reasonable jurors could the Wilsons had to prove the City knew (not should have nevertheless disregard what all the engineers certified known) that flooding was substantially certain. A reviewing because the City had a financial incentive to believe them court cannot evaluate what the City knew by disregarding rather than pay the Wilsons. Of course, defendants have a most of what it was told. financial incentive to avoid paying damages in every case; if that incentive alone is some evidence of liability, then [54] Moreover, when a case involves scientific or technical plaintiffs create enough evidence to go to the jury every time issues requiring expert advice (as this one does), jurors cannot they file suit. disregard a party's reliance on experts hired for that very purpose without some evidence supplying a reasonable basis But more important, this ignores what the Wilsons had to 145 for doing so. Here, it was uncontroverted that three sets of prove—not that the City might have disbelieved the engineers' engineers certified that the revised plans met the City's codes reports, but that it did. This requires evidence of “objective and regulations—and thus would not increase downstream indicia of intent” showing the City knew identifiable harm flooding. The same firm that drew up the original Master Plan was occurring or substantially certain to result. 147 Jurors' certified the revised one; unless the City had some reason to doubts about the engineers' reports or the City's motives could know the first certification was true and the second one was not supply them with objective indicia that the City knew false (of which there was no evidence), there was only one flooding would occur. Constitutional concerns about the roles logical inference jurors could draw. of judge and jury do not allow either to make such evidence up. None of the evidence cited by the court of appeals showed the City knew more than it was told by the engineers. The We agree with the court of appeals that the Wilsons presented Wilsons' expert testified that flooding was (in his opinion) some evidence that the City damaged their property, and that inevitable, but not that the City knew it was inevitable. The in drawing up and approving drainage plans it was acting Wilsons' expert gave no opinion on the latter point. for a public purpose. The missing piece in the evidence here is proof that the City knew the plans it approved were substantially certain to increase flooding on the Wilsons'

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properties. While the City certainly knew that fact after the holds that the jury was required to believe the City's testimony flooding started, the Wilsons never pleaded or submitted that it relied on the engineers' assurances and thus did not to the jury any takings theory other than the City's initial know flooding was substantially certain to occur, stating approval. that when a case requires expert testimony “jurors cannot disregard a party's reliance on experts hired for that very Crediting all favorable evidence that reasonable jurors could purpose without some evidence supplying a reasonable basis believe and disregarding all contrary evidence except that for doing so.” 168 S.W.3d at 829. Even if this were an which they could not ignore, we hold there was no evidence appropriate review standard—which it hasn't been until today the City's approval of the revised drainage plan was an —I believe the jury had a reasonable basis upon which intentional taking. to disregard the City's professed reliance; the City had a financial incentive to disclaim knowledge of the flooding, Accordingly, we reverse the court of appeals' judgment and the Wilsons presented some evidence that the City had against the City under article I, section 17 of the Texas independent knowledge flooding was substantially certain to Constitution. Because the court of appeals declined to address occur. In my view, the jury was the proper body to weigh the the jury's alternate verdict for the Wilsons on a claim under witnesses' credibility and resolve these disputed fact issues. I the Texas Water Code, we remand the case to that court to nevertheless agree that the City cannot be liable for a taking in determine that issue. this case because I believe that a city's mere act of approving a private development plan cannot constitute a taking for public use. Accordingly, I concur in the Court's judgment but not its reasoning. Justice O'NEILL filed a concurring opinion in which Justice MEDINA joined.

Justice JOHNSON did not participate in the decision. I

Questions of intent are generally proved only by Justice O'NEILL, joined by Justice MEDINA, concurring. circumstantial evidence; as the court of appeals in this The Court does an excellent job of explaining the appropriate case aptly noted, “defendants will rarely admit knowing scope of no-evidence review: the reviewing court “must to a substantial certainty that given results would follow view the evidence in the light favorable to the verdict, from their actions,” and therefore the jury must be “free to crediting favorable evidence if reasonable jurors could, and discredit defendants' protestations that no harm was intended disregarding contrary evidence unless reasonable jurors could and to draw inferences necessary to establish intent.” 86 not.” 168 S.W.3d at 807. I agree with this standard and join S.W.3d 693, 704. I agree with the Court that the jury's Parts I through IV of the Court's opinion. But I cannot join ability to disbelieve the City's protestations is not itself Part V, because the Court misapplies the standard that it so “evidence of liability.” 168 S.W.3d at 830. Instead, the jury's carefully *831 articulates by crediting evidence the jury ability to weigh the witnesses' credibility means that the could reasonably disregard. City's testimony did not conclusively establish its lack of liability. Because liability is not conclusively negated, we The City of Keller's Master Drainage Plan required it must examine the record to see if there is legally sufficient in part to condemn a 2.8–acre drainage easement on the evidence from which the jury could infer that the City knew Wilson property for construction of an earthen channel flooding was substantially certain to occur. I would hold that forty-five feet wide and five feet deep that would funnel the evidence of intent that was presented in this case allowed water from the adjoining Sebastian property over the the jury to draw such an inference. Wilson property into the Little Bear Creek Watershed. The City chose not to proceed with this portion of the plan, At trial, the Wilsons presented evidence that the City though, claiming reliance on engineers' assurances that the had independent sources of knowledge that flooding was developers' installation of retention ponds on neighboring substantially certain to occur. First, they demonstrated that land could prevent flooding. The drainage channel that was the developers' plan itself was flawed. Rather than incorporate actually built ended at the edge of the Sebastian property and a drainage ditch running across the Wilson property, as the funneled water directly onto the Wilsons' land, destroying City's Master Plan required, the developers' plan ended the eight acres of farmland worth almost $300,000. The Court

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drainage ditch abruptly at the edge of the Wilson property. that the developments did not increase the velocity of water The Wilsons' expert testified that the plan's implementation or the flow of water” onto the neighboring property. 86 would necessarily “increase the volume and flow of water S.W.3d at 706. But the Wilsons disputed whether the City's across the Wilson property from the rate of fifty-five cubic protestations were credible, pointing out that the City had a feet per second to ninety-three cubic feet per second.” *832 powerful incentive to profess a lack of knowledge through 86 S.W.3d at 703. Second, the City was aware that water reliance on the engineers' assurances because it would then flowed across the Wilson property before the development avoid the considerable expense of compensating the Wilsons commenced, and, as the court of appeals pointed out, the for the property that would otherwise have been condemned City's Director of Public Works admitted that the City knew under the Master Drainage Plan. See id. at 705. the development would increase the water's flow and velocity; specifically, he testified that “the City knew the upstream Moreover, the Court's conclusion that juries cannot disregard water would be absorbed less and would flow faster due to a party's reliance on expert opinions is not consistent with our the removal of trees and vegetation from the developments jurisprudence. The Court cites two cases for this proposition, and from the forty-five-foot-wide earthen channel” that ended but neither supports the Court's analysis; instead, both cases at the Wilson property's edge. Id. at 705. Finally, there support the conclusion that the jury, as the finder of fact, was evidence that the City received a letter warning that should appropriately resolve factual disputes regarding a the developers' plan would subject the Wilson property to party's reliance on hired experts. Provident Am. Ins. Co. v. flooding. Castañeda, 988 S.W.2d 189, 194–95 (Tex.1998); State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448–50 (Tex.1997). While I believe there is some evidence that the City knew flooding was substantially certain to occur, there is also In Castañeda, a bad-faith insurance case, there was no some evidence that it did not. City officials testified that question that the insurer had relied on an expert's assurances they relied on the representations of engineers who assured and thus no dispute about whether the *833 jury could them retention ponds could substitute for a drainage easement have disregarded that evidence. Castañeda, 988 S.W.2d and the Wilson property would not be damaged. If the jury at 194–95. In that case, we performed a traditional legal accepted this evidence as true, I agree that the intent element sufficiency analysis and concluded there was no evidence that would be negated, which would preclude the City's takings the defendant acted in bad faith. Id. at 194. We did state that liability. But I do not agree that the jury was bound to reliance on an expert's opinion will not preclude a finding accept the City's testimony as true. The Court itself notes of bad faith if the expert's opinion was “unreliable and the that jurors “may choose to believe one witness and disbelieve insurer knew or should have known that to be the case.” Id. another,” and that “[c]ourts reviewing all the evidence in a However, we did not hold that the jury must credit a party's light favorable to the verdict thus assume that jurors credited testimony that it relied on an expert. testimony favorable to the verdict and disbelieved testimony contrary to it.” 168 S.W.3d at 819. This statement mirrors our We reiterated this point in Nicolau, another bad-faith prior jurisprudence, which has long provided that a jury “has insurance case. There, the Court noted “we have never held several alternatives available when presented with conflicting that the mere fact that an insurer relies upon an expert's report evidence” because it “may believe one witness and disbelieve to deny a claim automatically forecloses bad faith recovery as others,” “may resolve inconsistencies in the testimony of any a matter of law,” and again concluded that purported “reliance witness,” and “may accept lay testimony over that of experts.” upon an expert's report, standing alone, will not necessarily McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986) shield” the defendant from liability. Nicolau, 951 S.W.2d at (citations omitted). 448. The Court conceded that “[w]ere we the trier of fact in this case, we may well have concluded that [the insurer] did As the Court itself states, jurors are required to credit not act in bad faith,” but concluded that the “determination is undisputed testimony only when it is “clear, positive, not ours to make” because “the Constitution allocates that task direct, otherwise credible, free from contradictions and to the jury and prohibits us from reweighing the evidence.” inconsistencies, and could have been readily controverted.” Id. at 450 (citing TEX. CONST. art. I, § 15, art. V, §§ 6, 10). 168 S.W.3d at 820. The City's testimony does not meet this standard. The City Manager did testify that the City “would The same is true in this case. The jury was not required to not have approved the developments unless [it was] assured believe that the City did not know flooding was substantially

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certain to occur because it relied on assurances to the resulted in the taking or damaging of plaintiffs' property, contrary; as a reviewing Court, we should “assume that jurors and which acts were the proximate cause of the taking or credited testimony favorable to the verdict and disbelieved damaging of such property.” State v. Hale, 136 Tex. 29, testimony contrary to it.” 168 S.W.3d at 819. Such credibility 146 S.W.2d 731, 736 (1941) (emphasis added). In this case, determinations are uniquely suited and constitutionally flooding resulted from the developers' defective drainage committed to the fact finder. See TEX. CONST. art. I, § 15, design, not from the City's approval of the plat; thus, the City's art. V, § 6; see also Nicolau, 951 S.W.2d at 450. approval was not the proximate cause of the damage to the Wilson property.

Other courts, faced with similar facts, have also concluded II that a governmental entity cannot be liable for a taking Although I disagree with the Court's conclusion that the jury when its only action is to approve a private development was required to credit the City's testimony, I agree with plan. See Phillips v. King County, 136 Wash.2d 946, 968 its judgment in the City's favor because, in my view, the P.2d 871, 879 (1998); see also Pepper v. J.J. Welcome City's mere approval of the private development plans did not Constr. Co., 73 Wash.App. 523, 871 P.2d 601, 606 (1994). result in a taking for public use, as the constitutional standard In Phillips, the Washington Supreme Court observed that requires for a compensable taking. TEX. CONST. art. I, § there is no public aspect to a private development and 17. The City did not appropriate or even regulate the use concluded that “[i]f the county or city were liable for the of the Wilsons' land, nor did it design the drainage plan for negligence of a private developer, based on approval under the proposed subdivisions. Instead, the City merely approved existing regulations, then the municipalities, and ultimately subdivision plans designed by private developers, and that the taxpayers, would become the guarantors or insurers for the design included inadequate drainage capabilities. The City actions of private developers whose development damages argues, and I agree, that its mere approval of private plans did neighboring properties.” Phillips, 968 P.2d at 878. The court not transfer responsibility for the content of those plans from in Pepper similarly examined an inverse condemnation claim the developers to the City. Municipalities review subdivision based upon a county's approval of private developments with plats “to ensure that subdivisions are safely constructed and defective drainage plans; it, too, concluded that the county's to promote the orderly development of the community.” City approval did not cause the resultant flooding and did not of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex.1985); result in an unconstitutional taking. Pepper, 871 P.2d at 606. see TEX. LOC. GOV'T CODE § 212.002. Such a review The court noted that the flooding was “not the result of the is intended to protect the city's residents; it is not intended County appropriating or regulating their use of the land,” and to transfer responsibility for a flawed subdivision design held that “[t]he fact that a county regulates development and from the developers to the municipality. See, e.g., City of requires compliance with road and drainage restrictions does Round Rock, 687 S.W.2d at 302; see also Cootey v. Sun not transform a private development into a public project.” Inv., Inc., 68 Haw. 480, 718 P.2d 1086, 1091 (1986) (holding Id. The court concluded that because “land use regulation that “[t]he permit process by which the County approves of [the plaintiffs'] property did not cause the damages, no or disapproves the development of a proposed subdivision inverse condemnation was involved.” Id. I am persuaded by reflects an effort by government to require the developer the reasoning of the courts in Phillips and Pepper, and would to meet his responsibilities under the subdivision rules, similarly conclude that the City's plat approval in this case did regulations, and laws,” and that “the primary responsibility of not amount to an unconstitutional taking as a matter of law. providing an adequate and safe development rests with ... the developer, and not with the County”). The court of appeals in this case advanced an alternative reason for affirming the trial court's judgment, suggesting that Because the primary responsibility for a development's design even if the City could not be liable for merely approving rests with the developer, *834 and because the plat- a subdivision plat, it could nevertheless be held liable for approval process does not transfer such responsibility to the failing to condemn a drainage easement across the Wilson municipality, mere plat approval cannot be a basis upon property. 86 S.W.3d at 707. The court of appeals stated which to predicate takings liability. We have held that, to that “the City chose not to condemn any of the Wilson be liable for a taking, a governmental entity must “perform property,” but instead “allow[ed] the water flowing from certain acts in the exercise of its lawful authority ... which the Sebastian easement to discharge, uncontrolled, across the

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“[a] person whose property is injured by an overflow of water Wilson property.” Id. As noted above, however, it was the developers' plan—not the City's actions—that allowed the caused by an unlawful diversion or impounding has remedies water to flood the Wilson property. Because the City's action at law and in equity and may recover damages occasioned did not cause the flooding, I disagree that the City's failure by the overflow”). Because the developers' design of the plat to condemn an easement is relevant to takings liability. If —not the City's approval—caused the flooding damage in the City were responsible for the flooding but chose not this case, I would hold that the City cannot be held liable for to condemn the property, it might be subject to inverse- an unconstitutional taking under Article I, Section 17 of the condemnation liability. See Tarrant County Reg'l Water Dist. Texas Constitution. v. Gragg, 151 S.W.3d 546, 554 (Tex.2004) (“When the government takes private property without first paying for it, the owner may recover damages for inverse condemnation.”). III However, if a governmental entity's actions are not the *835 “proximate cause of the taking or damaging” of the property, Because I believe the Court fails to give due regard to the then the entity cannot be liable for a taking. Hale, 146 S.W.2d jury's right to make credibility determinations, I cannot join at 736. Accordingly, the entity need not condemn property Part V of the Court's opinion. But because I conclude that merely because a private entity is causing damage. This rule the City's mere act of approving a private development plan does not leave owners of flooded property without a remedy; did not cause the Wilson property to be “taken, damaged or when a private development floods neighboring land, the destroyed for or applied to public use,” TEX. CONST. art. I, owner of the damaged property will ordinarily have recourse § 17, I agree that the City cannot be held liable for a taking in against the private parties causing the damage. See TEX. this case. Accordingly, I concur in the Court's judgment. WATER CODE § 11.086(a), (b) (providing that “[n]o person may divert or impound the natural flow of surface waters in All Citations this state ... in a manner that damages the property of another by the overflow of the water diverted or impounded” and that 168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848

Footnotes 1 The City of Fort Worth asserts in an amicus brief that in 2001 alone it approved 325 subdivision plats creating 5,857 residential lots within its extraterritorial jurisdiction, which of course excludes surrounding communities. 2 Evidence at trial and briefs by amici indicate that cities normally acquire title to these easements to ensure they are properly mowed and maintained after the developers' departure. 3 TEX. CONST. art. I, § 17; City of Dallas v. Jennings, 142 S.W.3d 310, 313–14 (Tex.2004). 4 86 S.W.3d 693, 715, 717. 5 Id. at 700. 6 See, e.g., Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003) (per curiam); Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.2000); Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992); Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Havner v. E–Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990); Burkard v. ASCO Co., 779 S.W.2d 805, 806 (Tex.1989) (per curiam); Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988); City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987); King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985); Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex.1984); Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam); Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Wininger v. Ft. Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912). 7 See, e.g., St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex.1998); State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40 (Tex.1998); Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983); Burk Royalty v. Walls, 616 S.W.2d 911, 922 (Tex.1981); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970);

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De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 97 (1955); Hall v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 498 (1952). 8 Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex.2004); Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); La.-Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex.1999); Latham v. Castillo, 972 S.W.2d 66, 68 (Tex.1998); Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex.1998). 9 See, e.g., Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam); compare Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957) (“We may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result.”) (emphasis added), with Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 298 S.W.2d 79, 81 (1956) (“[T]he duty of this Court [is] to examine and consider all of the evidence bearing on the controlling issues, and having done so to decide whether there is evidence of probative value to support the answers made by the jury to the issues.”) (quotation omitted) (emphasis added), and Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914) (“[W]e must reject all evidence favorable to the plaintiffs in error, and consider only the facts and circumstances which tend to sustain the verdict.... In considering this question, we must take into account all of the facts and circumstances attending the transaction.”). 10 See, e.g., W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY'S L.J. 1, 159–62 (2002); William V. Dorsaneo, III, Judges, Juries, & Reviewing Courts, 53 SMU L.R. 1497, 1498, 1507–11 (2000); Phil Hardberger, Juries Under Siege, 30 ST. MARY'S L.J. 1, 40–41 (1998). But see William Powers, Jr., Judge & Jury in the Texas Supreme Court, 75 TEX. L.REV. 1699, 1699–1700, 1704–19 (1997) (concluding the Court is not changing the no-evidence standard of review but is moving away from broad definitions of duty and toward particularized definitions of duty). 11 Robert W. Calvert was an associate justice of this Court from 1950 to 1960, and Chief Justice from 1961 to 1972. 12 Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 TEX. L.REV. 361 (1960). 13 Id. at 361. 14 “Most of what has been said here is repetitious of what has been said before in the cited cases and articles. The purpose of the writer here has been to try to bring former writings on the subject into compact form and under somewhat closer analysis.” Id. at 371. 15 Id. at 362–63. 16 See, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003) (per curiam); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991); Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex.1991); Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990). 17 Calvert, supra note 12, at 364. 18 See In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002); Uniroyal, 977 S.W.2d at 340; Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). 19 Calvert, supra note 12, at 364 (“If there is an absolute absence of evidence of a vital fact ... an appellate court has no occasion to concern itself with an abstract rule such as how minds of reasonable men might view the situation.”). 20 New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158–59 (Tex.2004); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.2000); Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, 877–78 (1912). 21 Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.2002) (considering remarks in context of series of talk-show programs); Turner, 38 S.W.3d at 115 (holding defamation includes story in which details are right but gist is wrong). 22 Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.2004). 23 DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex.1999). 24 Tiller v. McLure, 121 S.W.3d 709, 714 (Tex.2003) (per curiam); see also Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 610–11 (Tex.2002); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex.1999). 25 See George Grubbs Enters., Inc. v. Bien, 881 S.W.2d 843, 852–53 (Tex.App.-Fort Worth 1994) (holding that efforts to pressure deaf-mute consumer to buy car were legally sufficient evidence of intentional infliction), rev'd on other grounds, 900 S.W.2d 337, 338 (Tex.1995). 26 See Tiller, 121 S.W.3d at 714 (holding efforts to pressure widow of contracting party to complete project were legally insufficient evidence of intentional infliction).

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27 See, e.g., id. at 713–14 (discussing contrary evidence showing defendant's reasonable concerns about timeliness of plaintiff's work); Sears, 84 S.W.3d at 612 (discussing contrary evidence that defendant believed claimant was involved in suspicious dealings). 28 Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684, 685 (Tex.2004) (holding no evidence supported defect as comments from deposition “were read out of context”). 29 Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 n. 1 (Tex.2004) (citing Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, 538 (1912)). This rule was changed for hearsay evidence in 1983. See TEX.R. EVID. 802 (“Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.”). 30 Tex. & P. Ry. Co. v. Ball, 96 Tex. 622, 75 S.W. 4, 6 (1903). 31 Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 579 (Tex.2002) (holding defamation was not in course and scope of employment as duties required employee to cooperate in investigation but not to lie); Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 360 (Tex.1971) (holding truck driver was not in course of employment during social visit to his father). 32 Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782–83 (1949) (affirming directed verdict against malpractice claim as inadequate expert testimony from doctor of same school or practice as defendant rendered proof legally insufficient). 33 See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996). 34 See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499–500 (Tex.1995) (holding opinion that spray caused frostbite was legally insufficient as it assumed absence of redness when plaintiff admitted the contrary); Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982) (holding opinion that physician should have warned of possible skull fracture was legally insufficient as it assumed physician was aware of fracture when there was no proof he was). 35 See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995) (adopting reasoning of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). 36 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714, 720 (Tex.1997). 37 Id. at 711, 724–30. 38 Kerr–McGee Corp. v. Helton, 133 S.W.3d 245, 254–57 (Tex.2004). 39 Calvert, supra note 12, at 364. 40 Id. at 364–65. 41 Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (holding evidence that truck caught fire unaccompanied by proof identifying any defect did not exceed a scintilla, as jurors would have to guess cause); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003) (per curiam); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997); W. Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895, 900 (Tex.1937); Calvert, supra note 12, at 365. 42 Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex.1991); see also Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984) (citing Tex. Sling Co. v. Emanuel, 431 S.W.2d 538, 541 (Tex.1968)). 43 Lozano, 52 S.W.3d at 167. 44 Calvert, supra note 12, at 365. 45 Id. 46 Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 938 (Tex.1998). 47 See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003) (per curiam); McCann, 99 S.W.2d at 900. 48 Calvert, supra note 12, at 363–64. But other commentators disagree. See Powers, supra note 10, at 1703–10. We have held that a “conclusively and as a matter of law” point may be asserted under a “no evidence” point. O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 113 (Tex.1976). And the cases in this section note that conclusive proof is often asserted by parties that do not carry the burden of proof. See also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam) (court must first examine record for evidence supporting verdict, ignoring all evidence to the contrary; if there is no such evidence, the court then examines the entire record to see if the contrary finding is established as a matter of law). 49 Calvert, supra note 12, at 363–64. But see, e.g., Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex.1991) (“Cecil's points that (1) there was no evidence to support the findings and (2) the contrary of each finding was established as a matter of law will hereinafter collectively be referred to as her “no evidence” points.”). 50 St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519–20 (Tex.2002) (plurality op.) (quoting Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 51 n. 1 (Tex.1997)). 51 Tex. & N.O.R Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 528, 530 (1947); see also Prudential Ins. Co. of Am. v. Krayer, 366 S.W.2d 779, 783 (Tex.1963) (finding evidence of suicide undisputed after disregarding disputed portion of facts).

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52 Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517, 523 (1956) (“[T]he trial court is required to submit only controverted issues. No jury finding is necessary to establish undisputed facts.”); Clark v. Nat'l Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 822 (1947) ( “Uncontroverted questions of fact need not be and should not be submitted to the jury for its determination.”); S. Underwriters v. Wheeler, 132 Tex. 350, 123 S.W.2d 340, 341 (Tex.1939). 53 County of Bexar v. Santikos, 144 S.W.3d 455, 460–61 (Tex.2004). 54 PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 97–98 (Tex.2004). 55 State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40 (Tex.1998). 56 Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709–10 (Tex.2003) (per curiam). 57 See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 930 (Tex.1996). 58 King v. Graham, 126 S.W.3d 75, 78–79 (Tex.2003) (per curiam) (holding no evidence supported malicious prosecution claim as district attorney admitted prosecution was due to item he overlooked rather than any false statements by defendants). 59 Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex.1962) (return to regular job in which use of hand was required conclusively established claimant did not suffer total loss of use). 60 Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309–10 (Tex.1986) (return to work did not conclusively establish injury was not total as claimant could not do regular work and employer voluntarily accommodated her with lesser duties). 61 See, e.g., Prudential Ins. Co. of Am. v. Krayer, 366 S.W.2d 779, 783 (Tex.1963). 62 See Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 552 (Tex.1976). 63 Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340 (Tex.1998); Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). 64 811 S.W.2d 557, 560 (Tex.1991). 65 Id. at 558. 66 Id. at 560. In defense of jurors, it should be noted that the trier-of-fact in Murdock was a judge. 67 135 Tex. 7, 136 S.W.2d 1113, 1115 (1940). 68 Id. 69 Id. 70 Clewis v. State, 922 S.W.2d 126, 133 n. 12 (Tex.Crim.App.1996) (en banc) (citation omitted). 71 Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911). 72 443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 73 Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004). 74 Our sister court reviews the legal sufficiency of criminal convictions by considering “all evidence which the jury was permitted, whether rightly or wrongly, to consider” in the light most favorable to the prosecution. Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004); see also Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005). 75 In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). 76 Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex.2002); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000). 77 Garza, 164 S.W.3d at 627. 78 616 S.W.2d 911, 922 (Tex.1981). 79 Id. at 926 (Greenhill, C.J., concurring). 80 See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234–35 (Tex.2004). 81 Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 55–56 (Tex.1997). 82 See id. at 51 (noting same problem with previous test whether insurer had reasonable basis for denying claim). 83 See Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262–63 (Tex.2002) (finding no evidence of bad faith based in part on defendant's correspondence showing misunderstanding regarding settlement terms); State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 45 (Tex.1998)(affirming bad-faith verdict after noting that insurer gave contradictory reasons for not interviewing potential arsonists); Minn. Life Ins. Co. v. Vasquez, 133 S.W.3d 320, 330 (Tex.App.-Corpus Christi 2004, pet. filed) (finding some evidence of bad faith because, though insurer showed hospital stymied its efforts to obtain records, insurer failed to seek same information from other sources); Allstate Tex. Lloyds v. Mason, 123 S.W.3d 690, 704–06 (Tex.App.-Fort Worth 2003, no pet.) (reversing bad-faith verdict for legal insufficiency because insurer reasonably relied on expert report); Allison v. Fire Ins. Exch., 98 S.W.3d 227, 249–50 (Tex.App.-Austin 2002, pet. granted, judgm't vacated w.r.m.) (affirming bad-faith verdict after reviewing insurer's reasons for delay and insured's responsive

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evidence); Oram v. State Farm Lloyds, 977 S.W.2d 163, 167 (Tex.App.-Austin 1998, no pet.) (reversing bad-faith verdict for legal insufficiency because insurer's interpretation of exclusion was reasonable though incorrect). 84 Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex.2003) (per curiam) (noting liability may be established by proof of discrimination plus proof employer's reason was pretext); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex.1996) (same). 85 See, e.g., Univ. of Houston v. Clark, 38 S.W.3d 578, 583 (Tex.2000) (noting good-faith test considers all circumstances on which official acted). 86 See, e.g., PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 94 (Tex.2004) (holding no evidence supported jury verdict applying discovery rule based on contrary evidence that claimant's predecessor knew 3,000 windows had failed). 87 See, e.g., Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 194–95 (Tex.1998) (finding no evidence insurer denied claim in bad faith due to conflicting medical evidence). 88 See, e.g., State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex.1997) (holding some evidence showed expert report was pretext and thus denial of claim had no reasonable basis). 89 Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex.1993); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Edrington v. Kiger, 4 Tex. 89, 93 (1849). 90 McGalliard, 722 S.W.2d at 697; Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex.1986); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563 (1952) (holding it was up to jurors “to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses”); Houston, E. & W.T. Ry. Co. v. Runnels, 92 Tex. 305, 47 S.W. 971, 972 (1898). 91 Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000). 92 Runnels, 47 S.W. at 972. 93 Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 907 (1942) (noting the Court “read the entire statement of facts”). 94 Harbin v. Seale, 461 S.W.2d 591, 594 (Tex.1970); compare Harbin v. Seale, 454 S.W.2d 271, 272 (Tex.Civ.App.-Dallas 1970) (reporting defendant's testimony that he was traveling only 40 miles per hour), rev'd, 461 S.W.2d 591 (Tex.1970). 95 MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 653–54 (Tex.1999) (holding evidence allowed jurors to disbelieve defendant's experts' testimony even though plaintiff's expert's testimony was shown to be in error); Runnels, 47 S.W. at 972; Cheatham v. Riddle, 12 Tex. 112, 118 (1854). 96 PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 100 (Tex.2004). 97 Anchor Cas. Co. v. Bowers, 393 S.W.2d 168, 169–70 (Tex.1965). 98 Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex.1998); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). 99 Bentley v. Bunton, 94 S.W.3d 561, 599 (Tex.2002). 100 See TEX.R. CIV. P. 166a(c); Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 817 (Tex.2002) (finding no evidence that store knew of puddle based in part on uncontradicted testimony by only employee in the area); In re Doe 4, 19 S.W.3d 322, 325 (Tex.2000); WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 574 (Tex.1998) (holding reporter's detailed explanation of foundation of report established lack of malice as matter of law). 101 See, e.g., Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 754 (Tex.1993); Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 601 (Tex.1993); Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 365 (1957); Howard Oil Co. v. Davis, 76 Tex. 630, 13 S.W. 665, 667 (1890) (holding reviewing court must uphold jury verdict despite strong evidence to the contrary if evidence is conflicting). 102 See, e.g., Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 592 (Tex.1999); Caller–Times Publ'g Co. v. Triad Communications, Inc., 826 S.W.2d 576, 580 (Tex.1992); Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex.1966). 103 Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48–49 (Tex.1998). 104 Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex.1998). 105 White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262–63 (Tex.1983). 106 Hall v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 502 (1952). 107 St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542–43 (Tex.2002) (plurality op.). 108 T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). 109 Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341–42 (Tex.1998). 110 De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 98–99 (1955).

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111 Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); id. at 162–63 (Hecht, J., concurring and dissenting). 112 See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994); Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex.1983) (per curiam). 113 See William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” & “Insufficient Evidence,” 69 TEX. L.R. 515, 517– 20 (1991). 114 Gragg, 151 S.W.3d at 552; St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998) (per curiam); Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Havner, 953 S.W.2d at 711; Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 75 (Tex.1997) (Hecht, J., concurring); Preferred Heating & Air Conditioning Co. v. Shelby, 778 S.W.2d 67, 68 (Tex.1989) (per curiam); Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); W. Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895, 898 (Tex.1937). 115 See St. Joseph Hosp., 94 S.W.3d at 519–20 (Tex.2002) (plurality op.); Giles, 950 S.W.2d at 51 n. 1 (citing Wininger v. Ft. Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912) and Tex. & N.O. Ry. Co. v. Rooks, 293 S.W. 554, 556–57 (Tex.Comm'n.App.1927)). 116 Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620 (Tex.2004) (citing Choate v. San Antonio & A.P. Ry., 91 Tex. 406, 44 S.W. 69, 69 (1898); Muhle v. N.Y., T. & M. Ry., 86 Tex. 459, 25 S.W. 607, 608 (1894)). 117 Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex.1988); Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965); Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 61 (1953); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562 (1952); Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935, 938 (1940). 118 Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex.2004); S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996); Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983); Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 753 (Tex.1970); Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 153 (1953); Fitz–Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 258 (1951); Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121, 122 (1950); White v. White, 141 Tex. 328, 172 S.W.2d 295, 296 (1943); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 445 (1941); Wellington Oil Co. v. Maffi, 136 Tex. 201, 150 S.W.2d 60, 61 (1941); Chicago, R.I. & G. Ry. Co. v. Carter, 261 S.W. 135, 135 (Tex.Com.App.1924, judgm't adopted); Charles v. El Paso Elec. Ry. Co., 254 S.W. 1094, 1094–95 (Tex.Com.App.1923, holding approved, judgm't adopted). 119 Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam); Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 483 (Tex.1984); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983); Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex.1982); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978); Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976); Jones v. Nafco Oil & Gas, Inc., 380 S.W.2d 570, 574 (Tex.1964). 120 Act of April 25, 1931, 42d Leg., R.S., ch. 77, § 1, 1931 Tex. Gen. Laws 119; Myers v. Crenshaw, 134 Tex. 500, 137 S.W.2d 7, 13 (Tex.1940); Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 971 (Tex.1936). Cf. Deal v. Craven, 277 S.W. 1046, 1047 (Tex.Com.App.1925, judgm't adopted) (“It has long been settled in this state that the judgment must follow the verdict, and that the courts are without power to enter a judgment notwithstanding a verdict upon a material issue.”). 121 Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex.1998) (“[W]e consider the evidence in the light most favorable to the verdict and reasonable inferences that tend to support it.”); Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex.1983) (“In acting on the motion [for judgment notwithstanding the verdict], all testimony must be viewed in a light most favorable to the party against whom the motion is sought, and every reasonable intendment deducible from the evidence is to be indulged in that party's favor.”) (emphasis added); Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 728 (Tex.1982) (same); Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974) (same); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962) (same); Houston Fire & Cas. Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603–04 (1953) (affirming trial court's implied disregard of one jury answer based on “consideration of the transcript as a whole”); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952) (“[W]e must consider all the testimony in the record from the standpoint most favorable to the plaintiff.”) (emphasis added); Neyland v. Brown, 141 Tex. 253, 170 S.W.2d 207, 211 (Tex.1943) (considering judgment non obstante veredicto “in the light of the record as a whole”); Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224, 225 (1942) (“[W]e must view LeMaster's testimony, as well as all other testimony in the record, from a standpoint most favorable to him.”) (emphasis added); McAfee v. Travis Gas Corp., 137

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Tex. 314, 153 S.W.2d 442, 445 (1941) (“[W]e must regard the evidence contained in this record in its most favorable light for McAfee ... because of the instructed verdict and judgment non obstante veredicto.”); see also Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424–29 (Tex.2004) (upholding judgment non obstante veredicto based on conclusive evidence contrary to verdict). 122 See Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003) (per curiam); Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003) (per curiam); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990) (per curiam); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986); Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex.1984); Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Freeman v. Tex. Comp. Ins. Co., 603 S.W.2d 186, 191 (Tex.1980); Dodd v. Tex. Farm Prods. Co., 576 S.W.2d 812, 814–15 (Tex.1979); Campbell v. Northwestern Nat'l Life Ins. Co., 573 S.W.2d 496, 497 (Tex.1978); Miller v. Bock Laundry Mach. Co., 568 S.W.2d 648, 650 (Tex.1977); Sobel v. Jenkins, 477 S.W.2d 863, 865 (Tex.1972); C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 193 (Tex.1966). 123 See Tiller, 121 S.W.3d at 713 (citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001)); Miller, 102 S.W.3d at 709 (same); Best, 786 S.W.2d at 671 (citing King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985)); Tomlinson, 677 S.W.2d at 492 (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981)); Campbell, 573 S.W.2d at 497 (citing Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974)); Campbell, 406 S.W.2d at 193 (citing Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 697–98 (1914)). 124 IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex.2003); Wal–Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002); Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990); Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984). 125 See TEX.R. CIV. P. 166a(i). 126 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). 127 FED.R.CIV.P. 50(a)(1). 128 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949). 129 Id. at 57, 69 S.Ct. 413. 130 Reeves, 530 U.S. at 149–50, 120 S.Ct. 2097 (citations omitted). 131 Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (emphasis added) (citation omitted); accord Long v. Long, 144 S.W.3d 64, 67 (Tex.App.-El Paso 2004, no pet.); Gore v. Scotland Golf, Inc., 136 S.W.3d 26, 29 (Tex.App.-San Antonio 2003, pet. denied); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex.App.-Dallas 2002, pet. denied); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 113 n. 3 (Tex.App.-Beaumont 2001, pet. denied); Molina v. Moore, 33 S.W.3d 323, 329 (Tex.App.-Amarillo 2000, no pet.); Wal–Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 470 n. 3 (Tex.App.-Austin 2000, pet. denied); see also In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951) (per curiam) (holding court of appeals erred in failing to distinguish between legal and factual sufficiency review by not weighing all the evidence when conducting the latter). 132 Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981) (noting that review of gross negligence finding by considering all the evidence appeared to but did not conflict with traditional no-evidence test). 133 Dorsaneo, supra note 10, at 1503; see also Hardberger, supra note 10, at 17 (arguing exclusive standard is “designed to afford high deference to jury verdicts”). 134 State v. Biggar, 873 S.W.2d 11, 13 (Tex.1994). 135 See, e.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex.2000) (noting plaintiff argued defendant's frequent inspections of stairs showed knowledge of inherent danger, while court held it showed the opposite as inspections found nothing); State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 45 (Tex.1998) (affirming bad-faith verdict after noting insurer's reasons for denial were contradictory). 136 See, e.g., Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex.1993) (noting evidence of single previous minor stumble supported negligence finding but not gross negligence). 137 See Judith Resnik, Managerial Judges, 96 HARV. L.R.. 374, 382–83 (1982) (noting that images of justice appeared blindfolded only within the last four hundred years). 138 Justice Calvert's use of the masculine in 1960 may perhaps be forgiven, for although Hattie Hennenberg, Hortense Ward, and Ruth Brazzil served temporarily on this Court in 1925, and Sarah T. Hughes was appointed as a state district judge ten years later, it was not until 1954 that the Texas Constitution was amended to allow women to serve as jurors, and not until 1973 that Mary Lou Robinson became the first women to serve as a state appellate judge. See James T. “Jim”

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Worthen, The Organizational & Structural Development of Intermediate Appellate Courts in Texas, 46 S. TEX. L.REV. 33, 75 (2004); Robert L. Dabney, Jr. We Were There, HOUSTON B.J. Nov.-Dec.1999, at 42, 44. 139 Calvert, supra note 12, at 364. 140 Wilkerson v. McCarthy, 336 U.S. 53, 65, 69 S.Ct. 413, 93 L.Ed. 497 (1949) (Frankfurter, J., concurring). 141 86 S.W.3d 693, 709. 142 Id. at 703, 705. 143 Id. at 705. 144 Id. at 704–05. 145 Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189, 194–95 (Tex.1998); see also State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex.1997) (holding reliance on expert report did not foreclose bad-faith claim because claimant “presented evidence from which a fact-finder could logically infer that Haag's reports were not objectively prepared, that State Farm was aware of Haag's lack of objectivity, and that State Farm's reliance on the reports was merely pretextual.”). 146 Cf. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 140 (Tex.2004) (holding complaint letters may require manufacturer to investigate, but are not evidence complaints are true). 147 Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004) (emphasis added).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 23 City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

419 S.W.3d 597 Affirmed. Court of Appeals of Texas, San Antonio. Attorneys and Law Firms CITY OF SAN ANTONIO, Appellant v. *599 Norbert J. Hart, Michael D. Bernard, City Attorney's GREATER SAN ANTONIO BUILDERS Office, R. Gaines Griffin, Law Offices of Davidson, Troilo, ASSOCIATION and Indian Springs Ream & Garza, Dan Pozza, Law Offices of Dan Pozza, San Greater San Antonio Builders Association Antonio, TX, for Appellant. and Indian Springs Ltd., Appellees. S. Mark Murray, Law Office of S. Mark Murray, San Antonio, TX, for Appellee. No. 04–13–00013–CV. | Nov. 20, 2013. Sitting: KAREN ANGELINI, MARIALYN BARNARD, and Synopsis REBECA C. MARTINEZ, Justices. Background: Builders' association and owner of land within city limits brought declaratory judgment action against city seeking declaration that city's fair notice ordinance, which required all development project permit seekers to complete OPINION city's fair notice form, conflicted with and was preempted Opinion by: KAREN ANGELINI, Justice. by provisions of Local Government Code. The 37th Judicial District Court, Bexar County, denied city's plea to the The City of San Antonio appeals from a declaratory judgment jurisdiction, and city appealed. The Court of Appeals, 2013 invalidating its fair notice ordinance. We affirm. WL 2247468, affirmed. The 37th Judicial District Court, David A. Berchelmann, Jr., J., granted summary judgment in favor of builders' association and landowner. City appealed. BACKGROUND

Chapter 245 of the Texas Local Government Code Holdings: The Court of Appeals, Karen Angelini, J., held that In Texas, title 7 of the local government code governs the regulation of land use, structures, businesses, and related [1] city's fair notice ordinance, which required all activities. Chapter 245, which is contained in title 7 of the development project permit seekers to complete city's fair local government code, governs the issuance of local permits notice form in addition to an original application for the by a regulatory agency. TEX. LOC. GOV'T CODE ANN.. project under vested rights chapter of Local Government §§ 245.001–.007 (West 2005). In 2005, the Texas Legislature Code, conflicted with and was preempted by provisions of amended chapter 245 to include a provision stating that Local Government Code; certain development rights accrue “on the filing of an original application or plan for development or plat application that [2] trial court was not required to apply severance clause in gives the regulatory agency fair notice of the project and fair notice ordinance in order to strike any invalid parts of the nature of the permit sought.” See id. § 245.002(a–1). ordinance and leave remainder of ordinance in effect; Thus, under chapter 245, a development project is governed by the regulations in effect at the time of the application [3] terms of fair notice ordinance altered manner in which for the project's first permit, rather than by any intervening vested rights accrued, and were not merely “technical regulations passed by the regulatory agency. See id. Chapter requirements” relating to the form and content of permit 245 expressly provides that it may be enforced through applications; and declaratory relief. Id. § 245.006(a).

[4] trial court did not abuse its discretion in awarding attorney Fair Notice Ordinance fees to builders' association and landowner.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

In February 2006, the City of San Antonio passed the fair and whose rights had been previously acknowledged by the notice ordinance. Section 35–410 of the ordinance requires City by way of a vested rights permit or similar document, permit applicants to complete a form, the fair notice form, and (2) those who had vested rights in their property before with all permit applications. San Antonio, Tex., Unified the enactment of the ordinance but whose vested rights had Development Code, § 35–410 (2006). The express purpose not been previously acknowledged by the City. The second of section 35–410 is “to provide standard procedures for summary judgment motion addressed the ordinance as it an applicant to accrue rights under Chapter 245 of the affected a third category of plaintiffs: those who owned a Texas *600 Local Government Code.” Id. The provisions project, but had not yet obtained vested rights at the time of section 35–410 apply to “any application for a permit by the fair notice ordinance was enacted. Cumulatively, the which an applicant desires to accrue rights under Chapter summary judgment motions asserted that, in passing the 245 of the Texas Local Government Code.” Id. § 35–410(a). fair notice ordinance, the City substantively impaired or “To accrue rights under Chapter 245 of the Texas Local encumbered vested rights that had already accrued under Government Code, an applicant shall submit a complete chapter 245, and substantively impaired or encumbered application for a required permit ... within 45 days of the vested rights that would accrue under chapter 245 in the submission of the Fair Notice Form.” Id. § 35–410(e). future. The trial court granted both summary judgment motions, and rendered a final judgment in favor of GSABA and Indian Springs. The City appealed. Declaratory Judgment Action In July 2006, the Greater San Antonio Builders Association (GSABA) and Indian Springs, Ltd., filed the underlying declaratory judgment action, alleging the fair notice STANDARD OF REVIEW ordinance conflicted with chapter 245. GSABA is a non- We review a trial court's summary judgment de novo. Joe profit organization whose members include individuals and v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156– entities who are concerned with issues affecting the real estate 57 (Tex.2004); City of San Antonio v. En Seguido, Ltd., industry in the greater San Antonio area. Many members 227 S.W.3d 237, 240 (Tex.App.-San Antonio 2007, no also own real property in the City. Indian Springs is a Texas pet.). When reviewing a summary judgment we take as true limited partnership that owns real property in the City. The all evidence favorable to the nonmovant, and we indulge City is a regulatory agency as that term is defined in chapter every reasonable inference and resolve any doubts in the 245. See id. § 245.001(4) (providing that “regulatory agency” nonmovant's favor. Joe, 145 S.W.3d at 156–57; En Seguido, “means the governing body of, or a bureau, department, 227 S.W.3d at 240. The party moving for a “traditional” division, board, commission, or other agency of, a political summary *601 judgment bears the burden to show that no subdivision acting in its capacity of processing, approving, or genuine issue of material fact exists and that it is entitled to issuing a permit”). judgment as a matter of law. Joe, 145 S.W.3d at 156–57; En Seguido, 227 S.W.3d at 240; TEX.R. CIV. P. 166a(c). The City filed a plea to the jurisdiction challenging the standing of GSABA and Indian Springs. The trial court denied the City's plea to the jurisdiction, and the City appealed this interlocutory order. We affirmed the order denying the DECLARATORY JUDGMENT plea to the jurisdiction. City of San Antonio v. Greater San On appeal, the City argues the fair notice ordinance, like all Antonio Builders Ass'n, No. 04–12–00745–CV, 2013 WL ordinances, was entitled to a presumption of validity, and 2247468, at *4 (Tex.App.-San Antonio 2013, no pet.). GSABA and Indian Springs failed to satisfy their burden to overcome this presumption in the summary judgment Summary Judgment Motions proceedings below. The City further argues there is no GSABA and Indian Springs presented the merits of their conflict between chapter 245 and the fair notice ordinance; declaratory judgment action in two traditional summary to the contrary, the fair notice ordinance is consistent and in judgment motions. The first summary judgment motion harmony with chapter 245. In response to these arguments, addressed the ordinance as it affected two categories of GSABA and Indian Springs argue they met their summary plaintiffs: (1) those who had vested rights in their property judgment burden by conclusively establishing that the fair and had such rights before the enactment of the ordinance notice ordinance conflicts with chapter 245. 1

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In enacting chapter 245, the legislature found the statute's [1] [2] [3] [4] When reviewing the validity of a cityrequirements were necessary to prevent “administrative and ordinance, we begin with the presumption that the ordinance legislative practices that often result[ed] in unnecessary is valid. City of Brookside Village v. Comeau, 633 S.W.2d governmental regulatory uncertainty that inhibit[ed] the 790, 792 (Tex.1982); RCI Entm't, Inc. v. City of San Antonio, economic development of the state[,] increased the costs of 373 S.W.3d 589, 595 (Tex.App.-San Antonio 2012, no pet.). housing and other forms of land development[,] and often The party challenging the ordinance bears the burden to resulted in the repeal of previously approved permits causing establish its invalidity. RCI Entm't, 373 S.W.3d at 595. An decreased property and related values, bankruptcies, and ordinance that attempts to regulate a subject matter preempted failed projects.” See Act of May 11, 1999, 76th Leg., R.S., ch. by a state statute is unenforceable to the extent it conflicts with 73, § 1(b), 1999 Tex. Gen. Laws 432; see also Harper Park a state statute. Dallas Merchant's & Concessionaire's Ass'n Two, 359 S.W.3d at 250. v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex.1993); RCI Entm't, 373 S.W.3d at 595. We will not hold an ordinance [8] In the case before us, the City asserts the fair notice and a state statute repugnant to each other if we can reach a ordinance is necessary for it to carry out its responsibilities reasonable construction leaving both in effect. In re Sanchez, under chapter 245. According to the City, the fair notice 81 S.W.3d 794, 796 (Tex.2002); RCI Entm't, 373 S.W.3d ordinance ensures it will have enough information about at 595–96. However, if it is not possible to reconcile the a project to determine whether the project has changed ordinance and the state statute, the state statute trumps the and, therefore, is subject to current development regulations. ordinance. See Dallas Merchant's, 852 S.W.2d at 490–92. GSABA and Indian Springs counter that the fair notice ordinance impairs and encumbers important substantive [5] [6] [7] Historically, the right to develop property rights. They take the position that the fair notice ordinance in Texas was subject to regulatory changes brought by the allows the City to prevent owners from obtaining or utilizing local regulatory agency. Harper Park Two, LP v. City of vested rights that have already been authorized by the Austin, 359 S.W.3d 247, 249 (Tex.App.-Austin 2011, pet. legislature. denied). However, the Texas legislature modified this rule by enacting chapter 245. See id.; TEX. LOC. GOV'T CODE The summary judgment evidence submitted by GSABA and ANN.. § 245.002(a–1). The effect of chapter 245 is to freeze Indian Springs included the deposition testimony of Roderick most of the regulatory agency's land-use regulations as they J. Sanchez, the City's Director of Development Services. existed at the time the first permit application is filed through Sanchez testified that his department interprets and enforces completion of the project. City of San Antonio v. Rogers the fair notice ordinance. Sanchez acknowledged that what Shavano Ranch, Ltd., 383 S.W.3d 234, 245–46 (Tex.App.- constituted vested rights was defined by state statute, and San Antonio, 2012, pet. denied); Harper Park Two, 359 the definition of vested rights did not vary based on the S.W.3d at 250. The rights to which a permit applicant is location of the project. Nevertheless, Sanchez stated there entitled under chapter 245 are commonly referred to as were no circumstances under which the City would recognize “vested rights.” Vested rights attach to a project, not to vested rights in the absence of a completed fair notice a particular property owner. Rogers Shavano Ranch, 383 form. If an owner seeking recognition of vested rights did S.W.3d at 246; Harper Park Two, 359 S.W.3d at 250. not submit the fair notice form, his application would be Thus, vested rights follow any conveyances or transfer of deemed incomplete and the City would not begin its review rights related to the project. Rogers Shavano Ranch, 383 to determine whether or not the owner had vested rights. S.W.3d at 246; *602 Harper Park Two, 359 S.W.3d at Sanchez noted that the information an owner was required 250. Chapter 245 defines a “project” as “an endeavor over to provide under the fair notice ordinance was much more which a regulatory agency exerts its jurisdiction and for which detailed than the information that was required before the one or more permits are required to initiate, continue, or passage of the fair notice ordinance. Before the passage of the complete the endeavor.” TEX. LOC. GOV'T CODE ANN.. fair notice ordinance, an owner could identify an endeavor § 245.001(3). “Because the term project is defined as an without having all the information required on the City's fair endeavor, rights vest in a particular project and are no longer notice form, and the City would issue vested rights permits vested if the project changes.” En Seguido, 227 S.W.3d at without all of this information. Sanchez also acknowledged 242–43 (emphasis in original). that before the passage of the fair notice ordinance, but after chapter 245 was enacted, the City required only “evidence of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)

a project” to recognize vested rights, and this evidence could failure to provide information beyond that which was required have been as simple as a master development plan. to vest rights in the first place. Thus, the fair notice ordinance directly conflicts with chapter 245. The summary judgment evidence submitted by GSABA and Indian Springs also included the fair notice ordinance and For these reasons, we hold that GSABA and Indian Springs the fair notice form mandated by the ordinance. The fair overcame the presumption of validity and conclusively notice ordinance provides that the City will not recognize established that the fair notice ordinance conflicts with vested rights unless and until the owner completes and chapter 245. submits the fair notice form. *603 See San Antonio, Tex., Unified Development Code § 35–712(a)(1)–(b)(2) (2006). In arguing that the summary judgments were improperly The fair notice form requires an owner to identify any granted, the City criticizes the trial court for not trying to existing vested rights permit numbers if such permits have harmonize *604 the ordinance and the statute. However, already been approved for the proposed project. The form also the City does not explain how the ordinance and the statute requires a site plan for most types of development projects. could be harmonized. Having examined chapter 245, the According to the form, this site plan “shall include lot layout, ordinance, and the summary judgment evidence, we conclude general building footprint with approximate square footage the ordinance and chapter 245 cannot be harmonized. of building(s), and land use.” 2 The fair notice form provides that all fields on the form must be completed for the form to The City also faults the trial court for not severing the be valid. objectionable provisions from the fair notice ordinance. The City, however, did not present the severance clause argument Under chapter 245, the filing of the first permit, or plan for in its response to the first summary judgment motion. “Issues development, or plat application, in a development project not expressly presented to the trial court by written motion, determines the regulations that will be used to govern the answer or other response shall not be considered on appeal as remainder of the project. Specifically, section 245.002(a–1) grounds for reversal.” TEX.R. CIV. P. 166a(c). Thus, because provides: “Rights to which a permit applicant is entitled under this argument was not presented to the trial court, we may this chapter accrue on the filing of an original application not consider it on appeal as a ground for reversal of the first or plan for development or plat application that gives the summary judgment motion. regulatory agency fair notice of the project and the nature of the permit sought.” TEX. LOC. GOV'T CODE ANN.. [9] The City did present the severance clause argument § 245.002(a–1). When read in context, it is clear that the in its response to the second summary judgment motion. term “original application” contemplates an original permit There, the City argued that “[i]f the court believes that some application. Chapter 245 further provides: “If a series of of the requirements of the [f]air [n]otice [o]rdinance are permits is required for a project, the orders, regulations, so burdensome that vested rights might be prevented from ordinances, rules, expiration dates, or other properly adopted recognition, the [c]ourt should use the severability clause requirements in effect at the time the original application for contained in Section 6 of [the] [o]rdinance [ ] to strike out only the first permit in that series is filed shall be the sole basis the invalid parts and leave the remainder of the [o]rdinance in for consideration of all subsequent permits required for the effect.” The severance clause provides: completion of the project.” Id. § 245.002(b). Thus, chapter Should any Article, Section, Part, 245 expressly defines the documents that cause the accrual of Paragraph, Sentence, Phrase, Clause vested rights and the time when this accrual occurs. 3 or Word of this ordinance, for any reason be held illegal, inoperative, Nevertheless, as shown above, the fair notice ordinance or invalid, or if any exception creates an additional procedure for obtaining recognition of to or limitation upon any general vested rights under chapter 245. This additional procedure provision herein contained be held may wholly preclude the recognition of vested rights accruing to be unconstitutional or invalid under chapter 245. In other words, the fair notice ordinance or ineffective, the remainder shall, effectively redefines the manner in which vested rights accrue nevertheless, stand effective and valid under chapter 245. Under the fair notice ordinance, the City as if it had been enacted and can deny the exercise of vested rights based upon the owner's ordained without the portion held

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stipulated that $115,000.00 was a reasonable and necessary to be unconstitutional or invalid or attorney's fee for the work performed at the trial level. On ineffective. appeal, the City argues the attorney's fees award was neither San Antonio, Tex., Ordinance 2006–02–16–0241 (February equitable nor just. The City argues the taxpayers should not 16, 2006). be burdened with paying attorney's fees because the City was merely attempting to regulate development in accordance Here, GSABA and Indian Springs challenged the validity of with the law. the entire ordinance; they did not challenge the validity of a particular article, section, part, paragraph, sentence, phrase, We review the award of attorney's fees for an abuse clause, or word of the ordinance. Additionally, the trial court of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 concluded the entire ordinance was invalid, not merely part (Tex.1998); Peacock v. Schroeder, 846 S.W.2d 905, 912 of it. Under these circumstances, we conclude the trial court (Tex.App.-San Antonio 1993, no writ). Attorney's fees did not err in failing to apply the severance clause to salvage awarded under the Declaratory Judgment Act must be parts of the ordinance. “equitable and just.” TEX. CIV. PRAC. & REM.CODE ANN. § 37.009 (West 2008). As we concluded earlier in this [10] Finally, the City claims that section 245.002(f) opinion, the fair notice ordinance conflicts with chapter 245. expressly authorizes its fair notice ordinance. 4 We disagree. GSABA and Indian Springs were successful in demonstrating Section 245.002(f) does not go so far as to authorize a this conflict between the ordinance and the state statute, and in regulatory agency to wholly redefine the manner in which obtaining a declaratory judgment in their favor. See Peacock, vested rights accrue under chapter 245. It merely provides 846 S.W.2d at 912 (holding the trial court did not clearly that a regulatory agency is not prohibited from requiring abuse its discretion in awarding all of the stipulated attorney's compliance with technical application requirements. See fees to a party who obtained a declaratory judgment in his TEX. LOC. GOV'T CODE ANN.. § 245.002(f). favor). We hold the trial court did not abuse its discretion in awarding GSABA and Indian Springs attorney's fees. We hold the trial court did not err in granting summary judgment in favor of GSABA and Indian Springs. CONCLUSION

The trial court's judgment is affirmed. ATTORNEY'S FEES

[11] Next, the City challenges the trial court's attorney's fees All Citations award. The trial court awarded GSABA and Indian Springs $115,000.00 in attorney's fees incurred at the trial level, and 419 S.W.3d 597 additional amounts in *605 the event of an appeal. The City

Footnotes 1 GSABA and Indian Springs also argue the summary judgments should be upheld because the fair notice ordinance is an unconstitutional retroactive law. Arguably, this issue is not properly presented because GSABA and Indian Springs did not specifically make this argument in the first summary judgment motion. And, as to the second summary judgment motion, GSABA and Indian Springs only raised this issue in their brief, which was not filed until after the City filed its response. Nevertheless, we need not reach this argument because we uphold the summary judgments on the ground that the ordinance conflicts with chapter 245. 2 The undisputed summary judgment evidence showed that this information would generally not be available at the early stages of a project when a first permit application would be submitted. 3 Chapter 245 defines “permit” as “a license, certificate, approval, registration, consent, permit, contract or other agreement for construction related to, or provision of, service from a water or wastewater utility owned, operated, or controlled by a regulatory agency, or other form of authorization required by law, rule, regulation, order, or ordinance that a person must obtain to perform an action or initiate, continue, or complete a project for which the permit is sought.” TEX. LOC. GOV'T CODE ANN. . § 245.001(1) (emphasis added). However, the fair notice ordinance omits a utility service agreement

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as a document that may trigger the accrual of vested rights. According to the fair notice ordinance, there are only four acceptable documents that trigger the accrual of vested rights: a master development plan, a plat application, a plat, or a building permit. San Antonio, Tex., Unified Development Code § 35–712(b)(3)(A)–(D) (2006). 4 Section 245.002(f) provides: This chapter does not prohibit a regulatory agency from requiring compliance with technical requirements relating to the form and content of an application in effect at the time the application was filed even though the application is filed after the date an applicant accrues rights under Subsection (a–1). TEX. LOC. GOV'T CODE ANN.. § 245.002(f).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

forth standards for the operation and construction of private 598 S.W.2d 681 sewage facilities 1 and required inspection and licensing of Court of Civil Appeals of Texas, Waco. all such facilities existing within the city's limits or within the city's extraterritorial jurisdiction. Inspections were to be The CITY OF WEST LAKE HILLS, Texas, Appellant, made by the city for a fee of $25 unless an owner hired his v. own engineer or registered sanitarian to inspect the facility, WESTWOOD LEGAL DEFENSE FUND, Appellee. in which case a fee of $15 would be levied to cover the cost of processing reports required to be submitted by a private No. 6157. | April 17, 1980. inspector. If the facility met the express standards of the ordinance, a license immediately issued; if not, the city was City appealed from judgment entered in the 126th District required to specify the reasons for rejecting the application for Court, Travis County, James F. Dear, Jr., J., permanently license and the city was authorized to issue interim licenses enjoining city from enforcing by criminal action an ordinance while the facility was modified to comply with the standards. requiring licensing of private sewage facilities located within Most licenses were to be issued for a 5-year period, but a city's extraterritorial jurisdiction. The Court of Civil Appeals, license could be revoked at any time for non-compliance. James, J., held that: (1) city could not enforce ordinance by Enforcement of the ordinance was by criminal action brought criminal action; (2) city ordinance was not valid exercise in the city's municipal court. Offenses proscribed by the of powers granted to city under statute allowing each ordinance included, inter alia: 1) using or permitting the use city to pass ordinances regulating tapping of sewers and of an unlicensed private sewage facility on property owned cesspools and regulating house draining and plumbing, or or possessed by the offender; and 2) failure of an owner to under statute generally granting to cities power to license; and make application for a license for an existing private sewage (3) municipal court had no jurisdiction to try violations of facility on property within 90 days after notice by the city. ordinance which might occur in extraterritorial jurisdiction. Convictions were punishable by a fine of not more than $200 for each separate offense. Affirmed. The evidence establishes that the ordinance in question was Attorneys and Law Firms passed solely upon *683 the city's initiative and not as a joint effort between the city and any state or county authority. *682 John McAllen Scanlan, Scanlan & Buckle, Austin, for appellant. The Appellee, Westwood Legal Defense Fund, is a coalition of homeowners, all of which reside in a subdivision known David H. Walter, Bender, Walter & Wahlberg, Austin, for as Westwood, which is located entirely outside the corporate appellee. limits but within the extraterritorial jurisdiction of the City of West Lake Hills. The Appellee filed this suit to enjoin West Lake Hills from enforcing its Ordinance 108-B insofar as it OPINION applied to facilities located outside the city's corporate limits, pleading that the city lacks express or implied legislative JAMES, Justice. authority to regulate by licensing any private sewage facilities located outside the city's corporate limits; that the ordinance This is an appeal from a judgment permanently enjoining is hopelessly in conflict with state law since the Legislature the Appellant, City of West Lake Hills, from enforcing by has granted exclusive authority for the regulation of private criminal action an ordinance which requires the licensing sewage facilities to the Texas Water Commission and the of private sewage facilities located within the city's commissioners court of any county, citing Secs. 26.031 extraterritorial jurisdiction. We affirm the judgment. and 26.032 of the Texas Water Code; that the ordinance imposes a fine not to exceed $200 for any violation thereof, The Appellant, City of West Lake Hills, is a general law city that such a fine is penal in nature and is prohibited by having a population of less than 5000 people. On or about state law, citing Art. 970a, Sec. 4; that the penalty further October 12, 1977, the City Council passed an ordinance, conflicts with state law since Sec. 26.214 of the Texas 108-B, attempting to control pollution flowing from private Water Code provides the exclusive remedy as well as proper sewage facilities. Ordinance 108-B, among other things, sets

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

venue for violations of private sewage facility orders; that will be resolved against the municipality. Foster v. City of the scheme of the ordinance is arbitrary, capricious and Waco, cited supra. The City argues that the power exercised unreasonable; that the ordinance represents a violation of the in Ordinance 108-B is in fact expressly or at least impliedly constitutional prohibition against the enactment of retroactive conferred by Sec. 26.177 of the Texas Water Code, which in or ex post facto laws; and that the ordinance constitutes an its pertinent parts provides: unconstitutional taking of property without due process. *684 “(a) Every city in this state having a population of The case was submitted to the trial court on stipulated facts 5,000 or more inhabitants shall, and any city of this state may, and written briefs and the court rendered judgment granting establish a water pollution control and abatement program for a permanent injunction prohibiting the City of West Lake the city. Hills from enforcing by criminal action that provision of Ordinance 108-B which requires the licensing of private “(b) The water pollution control and abatement program of sewage facilities located within the city's extraterritorial a city shall encompass the entire city and may include areas jurisdiction. The trial court's judgment recited that “the CITY within its extraterritorial jurisdiction which in the judgment OF WEST LAKE HILLS, TEXAS, Ordinance 108-B is a of the city should be included to enable the city to achieve valid exercise of legislatively granted powers to the CITY OF the objectives of the city for the area within its territorial WEST LAKE HILLS, TEXAS, and that such Ordinance is in jurisdiction. The city shall include in the program the services all respects valid and enforceable except as hereinafter set out: and functions which, in the judgment of the city or as may be reasonably required by the commission, will provide effective “a. That DEFENDANT CITY OF WEST LAKE HILLS, water pollution control and abatement for the city, including TEXAS, Ordinance 108-B exceeds the authority granted the following services and functions: to the DEFENDANT CITY OF WEST LAKE HILLS by the State of Texas only in its attempt to require the “(1) the development and maintenance of an inventory licensing of private sewage facilities in the DEFENDANT'S of all significant waste discharges into or adjacent to the extraterritorial jurisdiction. water within the city and, where the city so elects, within the extraterritorial jurisdiction of the city, without regard “b. That the Municipal Court of the CITY OF WEST to whether or not the discharges are authorized by the LAKE HILLS, TEXAS, has no jurisdiction to try violations department; of Ordinance 108-B alleged to have occurred in the DEFENDANT CITY'S extraterritorial jurisdiction.” “(2) the regular monitoring of all significant waste discharges Further the judgment expressly recited that “Nothing included in the inventory prepared pursuant to Subdivision contained herein should be interpreted as expressing any (1) of this subsection; opinion over any of the provisions of Ordinance 108-B as they apply within the city limits of the CITY OF WEST LAKE “(3) the collecting of samples and the conducting of periodic HILLS, TEXAS.” inspections and tests of the waste discharges being monitored to determine whether the discharges are being conducted in The City appeals claiming simply that the court erred in compliance with this chapter and any applicable permits, finding its Ordinance 108-B invalid in the two respects set orders or rules of the department, and whether they should be forth above. We overrule the City's contentions. covered by a permit from the commission;

[1] [2] A city can exercise only those powers that are “(4) in cooperation with the department, a procedure expressly or impliedly conferred by law, and a power will be for obtaining compliance by the waste discharges being implied only when such power is reasonably incident to those monitored, including where necessary the use of legal expressly granted or is essential to the object and purposes enforcement proceedings; and of the corporation. Davis v. City of Taylor, 67 S.W.2d 1033, 123 Tex. 39 (1934); Anderson v. City of San Antonio, 67 “(5) the development and execution of reasonable and S.W.2d 1036, 123 Tex. 163 (1934); Foster v. City of Waco, realistic plans for controlling and abating pollution or 255 S.W. 1104, 113 Tex. 352 (1923). Furthermore, any fair, potential pollution resulting from generalized discharges of reasonable, or substantial doubt as to the existence of a power

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

waste which are not traceable to a specific source, such as “(d) If the commission finds after the hearing that the use of storm sewer discharges and urban runoff from rainwater.” private sewage facilities in an area is causing or may cause The city contends that this statute constitutes a broad, general pollution or is injuring or may injure the public health, the grant of power to cities to formulate plans for the control of commission may enter an order as it may consider appropriate pollution and that such plans can reasonably include licensing to abate or prevent pollution or injury to public health. of private sewage facilities and enforcement by criminal action. The city supports its argument by citing Attorney “(f) The commission may provide in the order for a system General's Opinion No. H-304 (1974), wherein the Attorney of licensing of private sewage facilities in the area, including General concludes that: procedures for cancellation of a license for violation of this section, the license, or the orders or rules of the department. “A city has broad powers to establish The commission may also provide in the system of licensing water pollution control programs for periodic renewal of the licenses, but this may not be under (Sec. 26.177), Texas Water required more frequently than once a year. Code. These powers can include regulation of private sewage facilities “(g) The commission may delegate the licensing function and in the city and in its extraterritorial the administration of the licensing system to the executive jurisdiction.” director or to any local government whose boundaries include the area or which has been designated by the commission [3] [4] [5] [6] In construing a statute, it is our dutyunder Sections 26.081 through 26.086 of this code as the to examine the entire act and construe it as a whole. One agency to develop a regional waste disposal system . . . provision of a statute will not be given a meaning out of harmony or inconsistent with other provisions, even though “(h) The board also may prescribe and require the payment of it might be susceptible to such construction if standing alone. reasonable license fees. . . . Merchants Fast Motor Lines, Inc. v. Railroad Commission of Texas, 573 S.W.2d 502 (Tex.1978); Barr v. Bernhard, “(i) If the commission or the executive director has the 562 S.W.2d 844 (Tex.1978); Gerst v. Oak Cliff Savings & responsibility for performing the licensing function, the Loan Assn., 432 S.W.2d 702 (Tex.1968). For this reason we license fees shall be paid to the department. . . . cannot accept the City's argument, nor can we agree with the Attorney General's Opinion to the extent that it may “(j) If a local government has the responsibility for support the City's position in this case. If Sec. 26.177 of the performing the licensing function, the fees shall be paid to the Texas Water Code were the only statutory provision relating local government.” (emphasis ours) to the control and abatement of pollution, there might be some merit to the argument. However, Sec. 26.177 is only Sec. 26.032 of the Texas Water Code further provides that: one provision in a much more complex and comprehensive legislative scheme. When Chapter 26 is viewed in its entirety, “(a) Whenever it appears to the commissioners court of any regardless of the broad, general language of Sec. 26.177, it county that the use of private sewage facilities in an area is clear that the section was not intended to authorize cities within the county is causing or may cause pollution or is on their own initiative to regulate private sewage facilities injuring or may injure the public health, the county may by licensing such facilities. For example, Sec. 26.031 of the proceed in the same manner and in accordance with the same Texas Water Code, relating to “private sewage facilities,” procedures as the commission to hold a public hearing and provides that: enter an order, resolution, or other rule as it may consider appropriate to abate or prevent pollution or injury to public *685 “(b) Whenever it appears that the use of private sewage health. facilities in an area is causing or may cause pollution or is injuring or may injure the public health, the commission “(b) The order, resolution, or other rule may provide the same may hold a public hearing in or near the area to determine restrictions and requirements as are authorized for an order of whether an order should be entered controlling or prohibiting the commission entered under this section. the installation or use of private sewage facilities in the area.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

“(c) Before the order, resolution, or other rule becomes five specific functions and services that are or may be effective, the county shall submit it to the commission and assigned to the cities. None of these functions and services obtain the commission's written approval. specifically requires passage of rules and regulations for controlling pollution. Instead, the functions and services “(e) Where a system of licensing has been ordered by the listed in Sec. 26.177 are in the nature of “information commission or the commissioners court of a county, no gathering” functions which would ultimately be very valuable person may install or use private sewage facilities required to to assist the state in designing and in enforcing its rules be licensed without obtaining a license.” and regulations. Sec. 26.177(b)(3), for example, expressly These two sections of the Water Code (Secs. 26.031 and states that the city's inspection and collection services are 26.032) specifically grant the power to license private designed to determine whether the discharges are meeting sewage facilities to the Texas Water Commission and to the applicable permits, rules, or orders of the state department Commissioners Courts of Texas counties. On the other hand, and whether they should be covered by a permit from the Sec. 26.177, granting the power to “control and abate water state commission. In our opinion, Sec. 26.177 requires (in pollution,” does not specifically grant the power to license the case of cities over 5000) or allows (in the case of cities such facilities nor does the language of Sec. 26.177 in any less than 5000) cities to monitor pollution levels both in their way track or resemble the language of Secs. 26.031 or 26.032. corporate limits and in their extraterritorial jurisdictions. The Furthermore, Sec. 26.031 expressly states that the power to information gathered in this monitoring could (or should) be license may be delegated to a city by the commission. In order used by cities in developing plans for growth and expansion, to give any effect to this specific provision, we would have to which may of course include consideration of problems in the conclude that the power granted to the cities by Sec. 26.177 extraterritorial jurisdiction. The information would further does not include the power that can be delegated by the Water be vital to the initiation of action by the state under Sec. Commission under Sec. 26.031. 26.031(b), or by the county under Sec. 26.032(a), if pollution problems were detected by the city in regard to private *686 [7] The city contends that Secs. 26.031 and 26.032 or public sewage facilities within or surrounding the city. cannot be construed to limit the powers granted under Sec. However, the legislative scheme simply does not contemplate 26.177 since neither 26.031 nor 26.032 expressly prohibits independent regulatory action by a city. regulation of private sewage facilities by cities. As a general rule, however, in the construction of statutes a general clause [8] [9] The city argues alternatively that Ordinance 108- is limited or controlled by a special provision. It is said that B is a valid exercise of powers granted to it under Art. 1076 this rule is based upon the principle that a specific clause or and Art. 1015(39), R.C.S. Art. 1076 directs that “Every city statute more clearly evidences the intention of the Legislature. in this State, however organized, having underground sewers City of Baytown v. Angel (Houston 14th CA 1971) 469 or cesspools, shall pass ordinances regulating the tapping S.W.2d 923, NRE. of said sewers and cesspools, regulating house draining and plumbing”; and Art. 1015(39) is a general grant of the power In the instant case the specific assignment of the power to to license. All powers granted to a city can only be exercised license private sewage facilities (Secs. 26.031 and 26.032) within the corporate limits of a city unless the power is limits the more general grant of power to the cities. In our expressly extended to apply to areas outside these limits. City opinion it is clear that the Legislature intended to reserve to of Sweetwater v. Hamner (Ft. Worth CA 1924) 259 S.W. the State the ultimate power to regulate in the area of pollution 191, writ dismissed; Ex parte Ernest, 138 Tex.Cr.R. 441, 136 control. Even though the counties have express authority S.W.2d 595 (1940). The Appellees in this case only challenge to develop licensing requirements, such requirements must the power of the city to regulate private sewage facilities be approved by the state. Sec. 26.032(c). Even though the located wholly within the city's extraterritorial jurisdiction cities may assist in obtaining compliance with pollution rather than within the city's corporate limits. Neither Art. 1076 standards, these efforts must be in cooperation with the Texas nor Art. 1015(39) expressly authorizes regulations applying Department of Water Resources. Sec. 26.177(b)(4). Although outside the corporate limits and cannot therefore be relied on the Legislature recognized the importance of cooperative in this case. The question of the validity of Ordinance 108-B efforts between state and local governmental bodies, the as it applies to facilities located within the city limits of City state is assigned responsibility for promulgating rules and of West Lake Hills is not raised by this case and we do not regulations to control pollution problems. Sec. 26.177 lists decide that issue.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)

writ. Having found that the city had no authority to apply *687 [10] [11] The Appellant City assigns as a its licensing regulations in the extraterritorial jurisdiction, we separate point of error the conclusion of the trial court that must also hold that the municipal court has no jurisdiction the municipal court has no jurisdiction to try violations to try violations of the ordinance which may occur in the of Ordinance 108-B alleged to have occurred in the extraterritorial jurisdiction. extraterritorial jurisdiction of the city. As a general rule, a municipal court only has jurisdiction to enforce violations Judgment of the trial court is affirmed. occurring within the corporate limits of the city. Art. 1195, AFFIRMED. R.C.S. A municipal court may, however, have jurisdiction to try offenses occurring outside the corporate limits if the offenses constitute violations of city ordinances which validly All Citations apply to the area in which the offense occurred. Treadgill v. State, 160 Tex.Cr.R. 658, 275 S.W.2d 658 (1955); Parker v. 598 S.W.2d 681 City of Ft. Worth (Ft. Worth CA 1955) 281 S.W.2d 721, no

Footnotes 1 “Private sewage facility” was defined as “any septic system, or other facility, system, or method for the storage, treatment, or disposal of sewage other than an organized disposal system.” (An “organized disposal system” being “any public or private system for the collection, treatment, and disposal of sewage operated in accordance with the terms and conditions of a permit from the Water Quality Board.”)

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Coffee City v. Thompson, 535 S.W.2d 758 (1976)

by the zoning ordinance of Coffee City. Trial was before the court without a jury. 535 S.W.2d 758 Court of Civil Appeals of Texas, The trial court rendered judgment that the zoning ordinance Tyler. was invalid and null and void, and ordered the Town of Coffee City, Mary Phillips, city secretary, and all other officials to COFFEE CITY et al., Appellants, grant appellee's building permit to construct a building for v. the operation of a package liquor store. Appellants bring this B. J. THOMPSON, Appellee. appeal from the portion of the judgment holding the zoning ordinance, being Ordinance No. 1, null and void, and of no No. 882. | March 25, 1976. further force and effect. We affirm. | Rehearing Denied April 22, 1976. The trial court made and filed Findings of Fact and Property owner brought action against town, mayor, town Conclusions of Law. The Town *760 of Coffee City secretary and member of town council, seeking to have was incorporated under the laws of Texas on December zoning ordinance declared null and void and seeking writ of 18, 1969. At the first election Wayne Phillips was elected mandamus or mandatory injunction for issuance of building mayor, Paul Phillips was elected councilman, and Mary permit. The 3rd Judicial District Court, Henderson County, Phillips was appointed city secretary, all of whom are parties R. W. Lawrence, J., entered judgment for plaintiff, and individually and in their official capacities. On January 19, defendants appealed. The Court of Civil Appeals, McKay, J., held that town zoning ordinance was vague, uncertain, 1970, Ordinance No. 1 1 was adopted by the Town Council. indefinite and incomplete, and therefore invalid; and that city Under the local option provisions of the Texas Liquor *761 zoning ordinance was invalid because of its failure to provide Control Act, the Town of Coffee City legalized the sale of all for zoning commission, and such defect was not cured by alcoholic beverages, for off-premises consumption only, on validating act. February 22, 1970.

Under the provisions of Ordinance No. 1 appellee's property Affirmed. was classified as ‘residential’. On August 2, 1973, appellee filed with the city secretary and Town Council an application Attorneys and Law Firms and request that his property be changed from ‘residential’ classification to ‘commercial’ classification, and such request *759 F. Wilbert Lasater, Potter, Lasater, Guinn, Minton was denied on September 12, 1973, by the Council. 2 & Knight, Tyler, Jack Y. Hardee, Fields, Fields & Hardee, Athens, for appellants. On October 4, 1973, appellee filed an application for a building permit with the city secretary to construct a building A. D. Henderson, Palestine, for appellee. for use as a package store and the sale of other alcoholic beverages. The appropriate filing fee was tendered with such Opinion application. On October 25, 1973, the application for the McKAY, Justice. building permit was refused on the ground that the property in question was zoned ‘residential’ under Ordinance No. 1. Appellee, B. J. Thompson, brought suit against the Town of Coffee City, Texas; Roland Wayne Phillips, individually At the time of the adoption of Ordinance No. 1, January and as mayor of Coffee City; Mary Phillips, individually and 19, 1970, the town did not have a Zoning Commission or as city secretary of Coffee City; Paul Phillips and Wilbert a Planning and Zoning Commission, nor did it have such a Davis. Appellee sought to have the zoning ordinance of the commission at the time of trial. Town of Coffee City declared null and void, and prayed for Cora Bradley had an undivided interest in appellee's property a writ of mandamus or mandatory injunction for the issuance at the time of the adoption of Ordinance No. 1 and had of a building permit for the construction of a building in actual notice of the proposed ordinance and requested that the which to operate a package store for the sale of alcoholic property be zoned ‘residential’. beverages. The property of appellee was zoned ‘residential’

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Coffee City v. Thompson, 535 S.W.2d 758 (1976)

property for living purposes as distinguished from use for The appellants, Roland Wayne Phillips, mayor, and his business or commercial purposes. Appellants further say that brother, Paul Phillips, a member of the Town Council, jointly an ordinance may be adequate as a rule of civil conduct own the package store, Kilo Drive-In, in Coffee City, and it even though it may be too indefinite and uncertain to be is the only package store in the Town of Coffee City located enforced by criminal prosecution. Appellants cite Vaccaro v. on Highway No. 155. At all times material to this case Coffee Rougeou, 397 S.W.2d 501 (Tex.Civ.App.—Houston 1966, City had a population not less than 200 nor more than 1,000 writ ref'd n.r.e.), a restrictive covenant case, as authority for inhabitants. the meaning of the words ‘residential’ and ‘commercial’.

Prior to the meeting of the Council on January 19, 1970, Appellants make the further argument that appellee knew written notices of such meeting were posted in three public his property was zoned residential before he acquired it and places *762 in the Town of Coffee City at least three before he applied for a building permit, and that he does not days prior to such meeting. No personal notice was given to have standing to assert the rights of others. any property owner prior to the council meeting of January 19, 1970, regarding the proposed adoption of Ordinance On the other hand, appellee contends that the ordinance is No. 1. Subsequent to the passage of Ordinance No. 1, vague, ambiguous, uncertain and incomplete because (1) it the entire ordinance was published in the Athens Review, fails to prohibit commercial uses of property classified or Athens, Texas, a weekly newspaper of general circulation in zoned residential; (2) it fails to provide any guideline for Henderson County, Texas. the city secretary in either issuing or denying a building permit; and (3) it fails to define uses permitted in the areas The trial court found in conclusions of law that Ordinance zoned residential and the areas zoned commercial. Appellee No. 1 is invalid (1) because it is vague and indefinite in that argues that since the ordinance fails to expressly restrict the it does not contain a prohibition of commercial use such as use of properties zoned residential to residential use, that the use sought by appellee in a residential area nor does it is, it fails to prohibit a commercial use of property zoned define or furnish guidelines for commercial or residential use; residential, it would have to be implied that a commercial (2) because the Town of Coffee City failed to provide for a use is not permitted in a residential area, and be implied that Zoning Commission in order to exercise zoning powers as a residential use is not permitted in area zoned commercial. required by Art. 1011f; 3 (3) because of the failure of the Appellee points out that the ordinance has no provision Town of Coffee City to follow the procedural requirements of making it unlawful or prohibiting the use of property for Art. 1011d; (4) because of the failure of the Town of Coffee commercial purposes in a residential area, nor does Ordinance City to give personal notice to the appellee's predecessors in 1 contain a directive to the city secretary requiring her to deny title and for failure to comply with the notice requirements of a building permit for construction of a commercial building Art. 1011d. The Court also found that Art. 974d—18, does simply because it is located in the residential zone. not validate Ordinance No. 1 in that the validating act has no [1] [2] [3] In Lone Star Gas Co. v. Kelly, 140 Tex. 15, application to an invalid ordinance such as the instant one. 165 S.W.2d 446 (Tex.Comm'n.App.1942, opinion adopted), it is said, ‘A statute *763 which either forbids or requires Appellant brings three points of error contending that the the doing of an act in terms so vague that men of common trial court erred in declaring Ordinance No. 1 invalid (1) intelligence must necessarily guess at its meaning and differ for vagueness, (2) for failure of the Town of Coffee City to as to its application violates the first essential of due process provide for a Zoning Commission, and (3) for failure of the of law.’ Town of Coffee City to give personal notice to appellee's predecessors in title and for failure to comply with the procedural requirements of Art. 1011d. Sanders v. State Department of Public Welfare, 472 S.W.2d 179 (Tex.Civ.App.—Corpus Christi 1971, writ dism'd), Appellants' first point complains that the trial court erred contains this language: in finding Ordinance No. 1 invalid because it is vague 'It is a general principle of law that a and indefinite. Appellants argue that the ordinance is not statute or regulation must be definite uncertain simply because it does not define ‘residential’ to be valid. Due process of law and ‘commercial’, and that the word ‘residential’ has a in legislation requires definiteness or clear and well understood meaning—that is, the use of certainty. If a regulation is incomplete,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Coffee City v. Thompson, 535 S.W.2d 758 (1976)

vague, indefinite and uncertain, and it forbids the doing of an act which is so Art. 1011a, provides that, ‘For the purpose of promoting vague, that men of common intelligence health, safety, morals, and for the protection and preservation must necessarily guess at its meaning and of places and areas of historical and cultural importance that such men differ as to application, it and significance, or the general welfare of the community, violates the first essential of due process the legislative body of cities and incorporated villages of law.' is hereby empowered’ to regulate the use of property. Art. 1011b, provides that the municipal legislative body may divide the municipality into districts, and that ‘within See 56 Am.Jur.2d Municipal Corporations, Sec. 367, p. 394. such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of Applying the above principles to the ordinance here in buildings, structures, or land. All such regulations shall be question, we are of the opinion such ordinance is vague, uniform for each class or kind of building throughout each uncertain, indefinite and incomplete and, therefore, invalid. district, but the regulations in one district may differ from It does not prohibit the building of a residence upon a those in other districts.’ commercially zoned area, nor does it prohibit the erection of a commercial building upon an area zoned residential. It Art. 1011f, reads in part as follows: simply describes a certain area as commercial, and then it 'In order to avail itself of the powers conferred by this declares all other property is zoned residential. It does not Act, such legislative body Shall appoint a commission, to describe what type or kind of residential structures may be be known as the Zoning Commission, to recommend the built. Some buildings, such as an apartment building, may boundaries of the various original districts and appropriate have both residential and commercial use. regulations to be enforced therein. Such Commission Shall [4] The ordinance does not provide any criteria or guidelines make a preliminary report and hold public hearings thereon for the city secretary to follow in granting or refusing before submitting its final report, and such legislative body building permits; and, therefore, it must be implied that the Shall not hold its public *764 hearings or take action until it city secretary has discretionary authority without restriction has received the final report of such Commission; . . . Written in issuing or denying such permits. An ordinance leaving notice of all public hearings before the Zoning Commission the question of issuing or denying building permits to the on proposed changes in classification Shall be sent to owners arbitrary discretion or determination of the city secretary of real property lying within two hundred (200) feet of the without any rule or standard to follow is invalid. Spann v. City property on which the change in classification is proposed, of Dallas, 111 Tex. 350, 235 S.W. 513, 517, 19 A.L.R. 1387 such notice to be given, not less than ten (10) days before the (1921); Crossman v. City of Galveston, 112 Tex. 303, 247 date set for hearing, to all such owners who have rendered S.W. 810, 815, 26 A.L.R. 1210 (1923); City of Houston v. their said property for city taxes as the ownership appears on Freedman, 293 S.W.2d 515 (Tex.Civ.App.—Galveston 1956, the last approved city tax roll . . .' (Emphasis added.) writ ref'd n.r.e.); 56 Am.Jur.2d Municipal Corporations, Sec. 369, p. 396. Appellants contend that Art. 974d—18, a validation statute affecting cities and towns of 1,000 inhabitants or less, which The only provision (Sec. IV) in the ordinance for an became effective in 1973, cured any failure by Coffee City application for a building permit to come before the Town to appoint a Zoning Commission or give notice to property Council results from the withholding of the issuance of a owners and validated the act of the Town Council in enacting building permit by the city secretary if she ‘shall conclude Ordinance No. 1. Section 3 of Art. 974d—18 provides: that the applicant is not truthfully representing the cost of 'All governmental proceedings and acts construction . . .’ performed by the governing bodies of such cities and towns and all officers We overrule appellants' point one. thereof since their incorporation, or attempted incorporation, are hereby in all Appellants say by their point two that the trial court erred respects validated as of the respective in declaring Ordinance No. 1 invalid for failure of the Town date of the proceedings and acts.' Council to provide for a Zoning Commission.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Coffee City v. Thompson, 535 S.W.2d 758 (1976)

enact a zoning ordinance, and we see no intention on the part Since the provisions of Art. 1011f relating to a Zoning of the Legislature to permit the Council to totally ignore Art. Commission are made mandatory in character by using 1011f. the word Shall concerning the appointment of such a Commission, it appears that the Town Council of Coffee In City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970), City, in order to avail itself of the power to enact a zoning the court held that a validation act like the one here did not ordinance, was required to appoint a Zoning Commission. No authorize the City Council to change a zoning classification Zoning Commission was appointed; therefore, Ordinance No. of property by resolution—that there was no intent seen on 1 can be valid only if it is made valid by Art. 974d—18. We the part of the Legislature to change a resolution into an have found no Texas case, nor have we been cited one, which ordinance, and that the property remained as it had been zoned directly decides this question. before the resolution, and the resolution was not ‘validated’ [5] Validating acts are remedial and are to be liberally into an ordinance. construed. Perkins v. State, 367 S.W.2d 140, 147 (Tex.1963). It was held in State v. Bradford, 121 Tex. 515, 50 S.W.2d *765 The case of City of Mason v. West Texas Utilities Co., 1065, 1078 (1932) that: 237 S.W.2d 273 (Tex.1951), held that curative or remedial statutes should generally ‘be given the most comprehensive '. . . where the act of some agent and liberal construction possible,’ but also held: of the state or of some agency which 'The fundamental rule controlling the construction of a statute must derive its power to act from the is to ascertain the intention of the Legislature expressed Legislature is void for the reason that, at therein. That intention should be ascertained from the entire the time the act was performed legislative act, and not from isolated portions thereof. This Court power therefor had not been given, has repeatedly held that the intention of the Legislature in the Legislature may, in the absence enacting a law is the law itself; and hence the aim and object of of constitutional prohibition, supply by construction is to ascertain and enforce the legislative intent, law operating retrospectively the power and not to defeat, nullify, or thwart it . . . It is settled that originally lacking so that the act which the intention of the Legislature controls the language used in was originally void is valid and binding.' an act, and in construing such act the court is not necessarily confined to the literal meaning of the words used therein, and the intent rather than the strict letter of the act will control.' See 62 C.J.S. Municipal Corporations s 432, pp. 827—8. The case of State v. Town of Bullard, 312 S.W.2d 435 (Tex.Civ.App.—Texarkana 1958, writ ref'd n.r.e.), cited by Appellant cites, follows and quotes from Bradford. In City of Waco v. City of McGregor, 523 S.W.2d 649 (Tex.1975), McGregor maintained that a validating act, Art. Burch v. City of San Antonio, 518 S.W.2d 540 (Tex.1975) 974d—12, validated its attempted annexation by ordinance held that the Legislature has the power to enact curative or of a strip of land 261 feet wide down U.S. Highway 84 remedial legislation and that such legislation should be given approximately five miles and then extending northerly to liberal construction. include a 900 acre tract owned by McGregor and used as a There seems to be no question that if the Town Council of municipal airport. Under Art. 970a McGregor could annex Coffee City had attempted to appoint a Zoning Commission an unincorporated area contiguous to its corporate limits, not or Board and there were irregularities in such procedure such a part of any other city, within its extraterritorial limits of irregularities would be cured by the validation statute. And if one-half (1/2) mile, ‘provided, however, that such limitation the Town Council had appointed a Zoning Commission and shall not apply to the annexation of property owned by the then there had been some irregularity in the adoption of a city annexing the same.’ The 900 acre McGregor airport was zoning ordinance it was the intention of the Legislature that within the extraterritorial limits of Waco. After stating that such irregularities would be cured. But it is difficult for us ‘curative statutes are liberally construed only to effectuate to see an intention on the part of the Legislature to permit the intent of the legislature in enacting them and not to other the Town Council of Coffee City to ignore a mandatory ends', the court held that legislative intent must be applied, statute requiring the appointment of a Zoning Commission. and that the McGregor ordinance violated Art. 970a, and that The Town Council had not availed itself of the powers to the validating statute, Art. 974d—12, ‘was not intended to

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and did not validate the annexation of either noncontiguous or [6] As is said in Lawton v. City of Austin, 404 S.W.2d nonadjacent territory,’ and that ‘the portion of the stem along 648 (Tex.Civ.App.—Austin 1966, writ ref'd n.r.e.), the police Highway 84 which intrudes into the exclusive extraterritorial powers of the State are exercised by the Legislature enacting jurisdiction of Waco is not adjacent to McGregor and so zoning laws, and the State has delegated some of this McGregor's attempted annexation of that portion of the stem legislative authority to municipalities. Arts. 1011a—1011j. was not validated by Article 974d—12. Since that part of the ‘The Legislature, of course, may put such restrictions on and stem is not validly annexed, the airport is not contiguous to provide the manner in which municipalities may exercise the McGregor and so McGregor's attempted annexation of the delegation of this authority as it sees fit.’ Lawton v. City of airport was not validated by Article 974d—12.’ See City of Austin, supra. West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971). 63 Tex.Jur.2d Zoning, Sec. 69, p. 836, reads in part: This court held in Rogers v. Raines, 512 S.W.2d 725 (1974, 'In order to avail itself of the powers writ ref'd n.r.e.), that the same validating act as here involved, conferred by the Zoning Enabling Act, Art. 974d—18, did not validate an attempted incorporation of the governing body of a municipality a town or village where the area sought to be incorporated did must appoint a zoning commission not constitute a town or village. to recommend the boundaries of the various original districts and appropriate Appellant concedes ‘that initially Ordinance No. 1 was not regulations to be enforced therein. legally enacted because of the failure of the town of Coffee The zoning commission must make City to follow the various procedural requirements,’ but relies a preliminary report and hold public entirely upon Art. 974d—18 to validate the ordinance. hearings thereon before submitting its In Bolton v. Sparks, 362 S.W.2d 946 at page 950 (Tex.1962), final report, and the governing body the court said: of the municipality may not hold its public hearings or take action until it has 'The courts of this State have received the final report of the zoning held ordinances and amendments to commission . . .' ordinances invalid where the express, mandatory provisions of our zoning statute have not been complied with. The The case of Peters v. Gough, 86 S.W.2d 515 (Tex.Civ.App. steps directed to be taken for notice and —Waco 1935, no writ), opinion by Judge Alexander, held hearing, when provided for in the law, that the statutory requirements in Arts. 1011a—1011j ‘are are intended for the protection of the intended for the protection of the property owner and are his property owner, and are his safeguards safeguards against an arbitrary exercise of the powers granted against the exercise of arbitrary power. by the statute. Hence, it would appear that such preliminary Each act required is essential to the steps required by the statute are essential to the exercise of exercise of jurisdiction by the City such jurisdiction.’ To the same effect is Tonroy v. City of Council, and each must be rigidly Lubbock, 242 S.W.2d 816 (Tex.Civ.App.—Amarillo 1951, performed. . . .' writ ref'd n.r.e.); City of Amarillo v. Wagner, 326 S.W.2d 863 (Tex.Civ.App.—Amarillo 1959, writ ref'd n.r.e.); City of San Antonio v. Pope, 351 S.W.2d 269 (Tex.Civ.App.—Eastland In Storm Bros. v. Town of Balcones Heights, 239 S.W.2d 1961, no writ). 842 (Tex.Civ.App.—El Paso 1950, writ ref'd n.r.e.), there was some question raised about the procedure followed in Some of the above cases point out that Art. 1011f provides appointing the members of the Zoning Commission, and that, ‘In order to avail itself of the powers conferred by this the court held that the members of the Zoning Commission Act, such legislative body Shall appoint a commission,’ and having been appointed and being de facto *766 members certain order steps must be taken. and serving as such, the validating act cured the defects complained of. In City of Kermit v. Spruill, 328 S.W.2d 219 (Tex.Civ.App. —El Paso 1959, writ ref'd n.r.e.), the court said:

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'While the legislature may validate been validated. The validating act did not apply where it was an ordinance passed by a municipal sought to zone in violation of law. corporation which would otherwise be void, because of procedural defects [8] Accordingly, we find Ordinance No. 1 of the town of in the manner of enactment, notice Coffee City to be invalid because of the failure of the Town and public hearing, provided there is Council to provide for a Zoning Commission. We overrule no constitutional objection to an act appellants' point two. which would have embraced every power exercised in the ordinance; it does not Appellants' third point complains of the finding of the trial follow that every such validating act court that Ordinance No. 1 is invalid for failure to give is sufficient to cure substantive defects personal notice to appellee's predecessor in title and for failure which render the application or subject to comply with the procedural requirements of Art. 1011d. of the ordinance ambiguous, vague or In view of disposition of points one and two, this point is uncertain.' overruled.

Appellee presents a cross-point complaining of the failure In Richardson v. State, 199 S.W.2d 239 at page 244 of the trial court to find Ordinance No. 1 invalid because (Tex.Civ.App.—Dallas 1946, writ ref'd n.r.e.), is found this it does not have any substantial relationship to the public language: health, safety, morals and general welfare of the public as 'Acts curing defects in the incorporation required by Art. 1011a. Appellee points out that the only of municipalities under the general law property in the town of Coffee City located on Highway apply where a legal incorporation was 155 which was zoned commercial belongs to Mayor Phillips, sought to be established—that is, where his brother (who is a member of the Town Council) and the law was attempted to be followed, but to Mayor Phillips' mother, and that Highway 155 is heavily in some particulars was not followed, and traveled and carries substantially all of the traffic through the where, if the forms of law had not been town. Moreover, there are only three tracts of land within omitted, the incorporation would have the corporate limits located on Highway 155 and one of been valid. They do not apply where it these is owned by the Phillips family, one by Henderson was sought to incorporate in violation of County used as a park, and the third tract is the tract known law.' as the Cora Bradley tract involved here. The Phillips' tract had three residential houses located on it and was zoned commercial while the Bradley tract had one house on it, and We have concluded that it was not the intention of the it was zoned residential. Ordinance No. 1 provides for seven Legislature to validate Ordinance No. 1 of the town of (7) specifically described areas zoned commercial, and there Coffee City when Coffee City had not availed itself of the are six (6) alcoholic beverage stores located in these areas power to enact a zoning ordinance and that such failure which are scattered at random over the town. The record was a substantive defect. It had not appointed a Zoning reflects that the property in the town was zoned residential or Commission nor had it attempted to do so. There was no commercial according to the request of the individual owner. Zoning Commission to make a preliminary report or to hold In our opinion this does not show an attempt to regulate in public hearings or to make a final report to the Town Council. accordance with a comprehensive plan as required by Art. [7] We are of the opinion that the reasoning in Richardson v. 1011c. State, supra, pertaining to a validating act attempting to cure defects in the incorporation of a municipality, is applicable The witness, Street, a Council member at the time the here. The analogy is that acts curing defects in zoning ordinance was adopted testified that, as zoned, Mayor Phillips ordinances *767 apply where a legal zoning ordinance and his brother would have the only liquor store on Highway was sought to be established—that is, where the law was 155, and that this result was known and discussed at the time attempted to be followed, and where, if the town of Coffee the ordinance in question was adopted. City had availed itself of the power to zone and then certain procedures had not been followed, the ordinance would have

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Exhibit P—1 shows that the corporate limits of the town 'When the judiciary finds it fairly obvious consists mainly of long, narrow strips along public roads and that a municipal ordinance was motivated such strips have no regular shape and appear to be several by a desire to advance the interests of miles in length. a particular individual, corporation or [9] A zoning ordinance must bear a substantial relation group, the courts have been quite willing to the public health, safety, morals or general welfare, and to invalidate the particular exercise if by the terms of the ordinance or as established by the of municipal power as not having a evidence as a matter of law it does not do so, then such reasonable *768 tendency to protect the ordinance is void. Weaver v. Ham, 149 Tex. 309, 232 S.W.2d public health, safety, morality or general 704 (1950); City of Corpus Christi v. Jones, 144 S.W.2d welfare.' 388, 397 (Tex.Civ.App.—San Antonio 1940, writ dism'd); 56 Am.Jur.2d Municipal Corporations, Sec. 438, p. 487. If it could be said the trial court erred in failing to find the [10] The record reveals that the Town of Coffee City was ordinance invalid because it bore no substantial relation to the incorporated on December 18, 1969; that the first election of public health, safety, morals or general welfare, in view of officers was held on January 7, 1970; that Ordinance No. 1 our disposition of this cause, it was harmless error. Rule 434, was passed January 19, 1970; and that a local option election T.R.C.P. for the sale of all alcoholic beverages was held on February The judgment of the trial court is affirmed. 22, 1970. All Citations

In Vol. 1, Antieau, Municipal Corporation Law, Sec. 516, p. 535 S.W.2d 758 5—48, is found this language:

Footnotes 1 ‘ORDINANCE I. 'AN ORDINANCE FOR THE ISSUANCE OF BUILDING PERMITS PRESCRIBING REGULATIONS CONCERNING THE SETBACK OF COMMERCIAL IMPROVEMENTS FROM HIGHWAY AND ROAD RIGHT-OF-WAY DEFINING COMMERCIAL PROPERTY, AND RESIDENTIAL PROPERTY, PROVIDING THAT NO PERSON MAY BE ISSUED A BUILDING PERMIT FOR A STRUCTURE TO BE USED FOR A LIQUOR OR PACKAGE STORE OR A STORE FOR THE SALE OF BEER AND/OR WINE ON OR OFF PREMISES UNLESS SUCH PERSON SHALL HAVE BEEN A RESIDENT OF COFFEE CITY, TEXAS, FOR AT LEAST ONE (1) YEAR PRIOR TO FILING SUCH APPLICATION, PROVIDING THAT NO PERSON SHALL ENGAGE IN THE RETAIL LIQUOR BUSINESS OR IN THE BUSINESS OF RETAILING BEER AND/OR WINE ON OR OFF PREMISES UNLESS SAID PERSON SHALL HAVE BEEN A RESIDENT OF COFFEE CITY, TEXAS, FOR AT LEAST ONE (1) YEAR, ESTABLISHING FEES FOR BUILDING PERMITS AND PROVIDING PENALTIES FOR THE VIOLATION OF THIS ORDINANCE IN ANY SUM NOT LESS THAN TEN ($10.00) DOLLARS AND NOT MORE THAN ONE HUNDRED ($100.00) DOLLARS EACH AND EVERY DAY OR A FRACTION THEREOF DURING WHICH THIS ORDINANCE IS VIOLATED IN DECLARING EACH SUCH DAY TO BE A SEPARATE OFFENSE. 'BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF COFFEE CITY, TEXAS: 'SECTION I. 'This entire ordinance is and shall be deemed an exercise of the police power of the State of Texas, and of the Town of Coffee City, for the public safety, comfort, convenience and protection of the town and citizens of said town, and all of the provisions hereof shall be construed for the accomplishment of that purpose. 'SECTION II. 'The following property in the city limits of Coffee City, Texas, shall be and is hereby zoned commercial property: (The metes and bounds description is omitted.) 'All of the rest of the property in the city limits of Coffee City, Texas, not hereinabove zoned as commercial property is hereby zoned as residential property and shall hereafter be residential property. 'SECTION III.

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'No person shall erect any structure of any nature upon any commercial property within the limits of the town of Coffee City, Texas, unless said structure is set back from the boundary of the highway or public road right-of-way a minimum of forty (40) feet distance. No part of any structure shall extend or obtrude toward the highway or public road so as to be within the forty feet limit herein prescribed. 'SECTION IV. 'No person shall commence the construction of any building or structure of any nature whatsoever within the limits of the town unless that person has first obtained a building permit. Any person desiring a building permit shall make application to the City Secretary and shall accompany said application by the fee hereinafter prescribed. The City Secretary shall determine whether the proposed structure complies with all ordinances of the town and shall upon the receipt of the proper fee then issue a building permit. Each application for a building permit shall state the cost of the construction of the proposed building or other structure and the fee for such building permit shall be One Dollar ($1.00) for each Thousand Dollars ($1,000.00). If the City Secretary shall conclude that the applicant is not truthfully representing the cost of construction, she may withhold the issuance of the building permit, in which event the issuance of a permit shall be determined by the town council at its next regular or called meeting. 'SECTION V. 'All applications for building permits shall specify the purpose for which the proposed structure is to be used. Such application shall further state the name in full of the applicant, the age of applicant, and the length of residence in the corporate city limits of Coffee City. No permit shall be issued to any person for the construction of a building to be used as a package store or liquor store and no permit shall be issued to any person for the construction of a building to be used as a place of business for the retail sale of beer and/or wine either on or off premises as such terms are defined in the Liquor Control Act of the State of Texas unless the owner of such building shall have been a resident of the City of Coffee City, Texas, for not less than one (1) year prior to the filing of such application. No person shall engage in the retail sale of liquor or engage in the retail sale of beer and/or wine either on or off premises unless such person shall have been a bona fide resident of Coffee City, Texas, for at least one (1) year prior to the commencement of business. Nothing in this section, however, shall apply to or affect any person who is engaged in the business of retailing liquor, beer and/or wine on or off premises on the effective date of this act in Coffee City, Texas, and this section further does not affect any person who has heretofore made application for a building permit for the purpose of constructing a building to be used as a package or liquor store or for retailing beer and/or wine for on or off premises consumption. 'SECTION VI. 'Any person, firm or corporation violating any of the provisions of this ordinance of (sic) failing to observe any of the provisions hereof, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00) and each and every day or fraction of a day during which this ordinance or any part thereof shall be violated shall be deemed a separate offense and punishable as such. 'SECTION VII. 'Each and every provision, paragraph, sentence and clause of this ordinance has been separately considered and passed by the Town Council of the Town of Coffee City, and each said provision, paragraph, sentence and clause would have been separately passed without any other provision, and if any provision, paragraph, sentence or clause hereof should be ineffective, invalid, or unconstitutional for any cause, it shall not impair or affect the remaining portion nor any other part hereof, but the valid portion shall be enforced in the manner as if it had been passed alone. 'SECTION VIII. 'The fact that the Town of Coffee City, Texas, now has no ordinance governing the matters regulated herein and the fact that construction of building (sic) and other structures is not now regulated so as to protect the citizens of the Town of Coffee City in their property and persons as aforesaid, creates an emergency, which is here and now declared, and this ordinance shall take effect and be in force, from and after its passage and publication, as provided by law. ‘PASSED AND APPROVED THIS THE 19TH DAY OF JANUARY, 1970.’ 2 Among the reasons given for denying the request to rezone were: (1) that the property is best suited for residential property, there being a residence close by; (2) that a tract of land adjacent to the land sought to be rezoned has been set aside for a public park and the best use of the property would be to remain residential since it is adjacent to and would be close to a public park; (3) that to rezone this property would constitute spot zoning; (4) that to rezone the property would interfere with the best interest and welfare of the citizens of Coffee City, Texas; (5) that the application to rezone the property is not in proper form and order; (6) a request was made when the property was originally zoned for residential, that it be zoned residential; (7) there have been complaints from citizens in Coffee City, Texas, to leave the property as residential property.

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3 All references are to Vernon's Texas Annotated Civil Statutes unless otherwise noted.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

(“City”) for declaratory and injunctive relief. The trial court held that the ordinance was preempted by the TABC. The 852 S.W.2d 489 court of appeals reversed. 823 S.W.2d 347. We hold that an Supreme Court of Texas. ordinance of a home-rule city prohibiting the sale of alcoholic DALLAS MERCHANT'S AND CONCESSIONAIRE'S beverages within 300 feet of a residential area is preempted ASSOCIATION et al., Petitioners, by the TABC. Consequently, we reverse the judgment of the v. court of appeals and affirm the judgment of the trial court. CITY OF DALLAS, Respondent. On September 30, 1987, the Dallas City Council (“Council”) No. D–2159. | April 7, 1993. | passed Ordinance No. 19694 (“Ordinance”), which created Rehearing Overruled June 3, 1993. new zoning categories for South Dallas. The Ordinance imposed a D–1 overlay on certain areas of South Dallas and Merchants association challenged validity of home-rule exempted certain areas that are outside of and do not effect city's zoning ordinance dispersing location of alcohol-related the residential areas of South Dallas. In this D–1 overlay area, businesses. The 134th District Court, Dallas County, Anne no business is allowed to sell or serve alcoholic beverages Ashby Packer, J., granted relief, and city appealed. The Court within 300 feet of residentially zoned properties not located of Appeals, 823 S.W.2d 347, reversed and rendered, and on a freeway service road or other specified road. However, further appeal was taken. The Supreme Court, Hightower, a business in a D–1 overlay area may sell or serve alcoholic J., held that ordinance of home-rule city prohibiting sale of beverages if the Council grants a specific use permit (SUP). alcoholic beverages within 300 feet of residential areas was On October 12, 1988, the Council approved Resolution preempted by Texas Alcoholic Beverages Code. 883306, which established the guidelines for evaluating SUP applications for selling or serving alcoholic beverages in areas Reversed. of South Dallas affected by the D–1 overlay. In June 1990, the Merchants filed suit against the City. Enoch, J., dissented and filed opinion in which Hecht and Cornyn, JJ., joined. Following a bench trial, the trial court rendered judgment which, among other things, granted the declaratory and injunctive relief requested by the Merchants. The trial court Attorneys and Law Firms concluded that the D–1 overlay provisions of the Ordinance conflicted with the TABC and was void to that extent under *489 Richard M. Lannen, Diane Snelson, Eric V. Moy#e, Eric R. Cromartie, David C. Godbey, Andrew L. Siegel, article XI, section 5 of the Texas Constitution. 1 The trial Dallas, for petitioners. court also permanently enjoined the City from enforcing the D–1 overlay provisions of the Ordinance. The court of Dan Morales, Austin, John Rogers, Dallas, W. Reed appeals reversed and rendered judgment. Lockhoof, Austin, Analeslie U. Muncy, Fort Worth, Angela Washington, *490 Sam A. Lindsay, Dallas, for respondent.

I.

OPINION The Merchants argue that the Ordinance is preempted by the TABC. We agree. HIGHTOWER, Justice.

In this cause, we consider whether an ordinance of a home-rule city prohibiting the sale of alcoholic beverages PREEMPTION OF HOME–RULE CITIES within 300 feet of a residential area is preempted by the Texas Alcoholic Beverage Code (TABC). In 1990, [1] To determine whether the Ordinance is preempted by the the Dallas Merchants and Concessionaires Association, the Texas Alcoholic Beverage Code, we must decide whether the Texas Package Stores Association, and other individuals Legislature, by enacting and amending the TABC, preempted (hereinafter “Merchants”) filed suit against the City of Dallas ordinances of home-rule cities that prohibit the sale of alcoholic beverages under these circumstances. Home-rule

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cities have broad discretionary powers, provided that no City of Abilene, 712 S.W.2d 644 (Tex.App.—Eastland 1986, ordinance “shall contain any provision inconsistent with the writ ref'd n.r.e.). Constitution of the State, or of the general laws enacted by the Legislature of this State.” TEX. CONST. art. XI, § 5. Home- Subsequently, in 1987, the Legislature added section 109.57 rule cities possess the full power of self government and look to the TABC and further amended it in 1991 to read in part: to the Legislature not *491 for grants of power, but only for limitations on their power. MJR's Fare of Dallas v. City of (a) Except as expressly authorized by this code, a Dallas, 792 S.W.2d 569, 573 (Tex.App.—Dallas 1990, writ regulation, charter, or ordinance promulgated by a denied). governmental entity of this state may not impose stricter standards on premises or businesses required to have a [2] [3] [4] [5] An ordinance of a home-rule city that license or permit under this code than are imposed on attempts to regulate a subject matter preempted by a state similar premises or businesses that are not required to have statute is unenforceable to the extent it conflicts with the state such a license or permit. statute. See City of Brookside Village v. Comeau, 633 S.W.2d (b) It is the intent of the legislature that this code shall 790, 796 (Tex.1982), cert. denied, 459 U.S. 1087, 103 S.Ct. exclusively govern the regulation of alcoholic beverages 570, 74 L.Ed.2d 932 (1982). However, “the mere fact that the in this state, and that except as permitted by this code, legislature has enacted a law addressing a subject does not a governmental entity of this state may not discriminate mean the complete subject matter is completely preempted.” against a business holding a license or permit under this City of Richardson v. Responsible Dog Owners, 794 S.W.2d code. 17, 19 (Tex.1990). “[A] general law and a city ordinance will not be held repugnant to each other if any other reasonable (c) Neither this section nor Section 1.06 of this code affects construction leaving both in effect can be reached.” City of the validity or invalidity of a zoning regulation that was Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206 (1927). formally enacted before June 11, 1987 and that is otherwise Thus, if the Legislature chooses to preempt a subject matter valid, or any amendment to such a regulation enacted after usually encompassed by the broad powers of a home-rule June 11, 1987 if the amendment lessens the restrictions city, it must do so with unmistakable clarity. See City of on the licensee or permittee or does not impose additional Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.1964). restrictions on the licensee or permittee. For purposes of this subsection, “zoning regulation” means any charter provision, rule regulation, or other enactment governing TEXAS ALCOHOLIC BEVERAGE CODE the location or use of buildings, other structures, and land.

[6] In 1977, the Legislature codified the Texas Liquor TEX.ALCO.BEV.CODE ANN. § 109.57(a), (b) & (c) (Vernon Supp.1992). The Legislature's intent is clearly Control Act into the TABC. 2 Prior to the codification, expressed in section 109.57(b) of the TABC—the several courts of appeals held that various ordinances of regulation of alcoholic beverages is exclusively governed home-rule cities prohibiting the sale of alcoholic beverages by the provisions of the TABC unless otherwise *492 were not preempted by the Texas Liquor Control Act. See, e.g., City of Clute v. Linscomb, 446 S.W.2d 377 provided. 3 TEX.ALCO.BEV.CODE ANN. § 109.57(b) (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Louder (Vernon Supp.1992). Section 109.57 clearly preempts an v. Texas Control Board, 214 S.W.2d 336 (Tex.Civ.App. ordinance of a home-rule city that regulates where alcoholic —Beaumont 1948, writ ref'd n.r.e.); Eckert v. Jacobs, beverages are sold under most circumstances. 4 Accordingly, 142 S.W.2d 374 (Tex.Civ.App.—Austin 1940, no writ). we hold that, to the extent of any conflict, the TABC preempts Subsequent to the codification, the Eleventh Court of Appeals the Ordinance. 5 held that the TABC did not preempt ordinances prohibiting the sale of alcoholic beverages. See Young, Wilkinson & Roberts v. City of Abilene, 704 S.W.2d 380, 383 (Tex.App. —Eastland 1985, writ ref'd n.r.e.) (“We hold that the II. Constitution and general statutes of this State do not deny the The City argues that if section 109.57 preempts an ordinance City [a home rule city] the right to regulate the area of the City of a home-rule city regulating where alcoholic beverages in which liquor could be sold.”); Abilene Oil Distributors v.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

are sold, sections 61.37, 109.31, 109.32, and 109.33 will be TABC. Therefore, we reverse the judgment of the court of 6 appeals and affirm the judgment of the trial court. rendered meaningless. We disagree.

*493 [7] Section 109.57 expressly states that the TABC will exclusively govern the regulation of Dissenting opinion by ENOCH, J., joined by HECHT and alcoholic beverages except as otherwise provided by the CORNYN, JJ. TABC. 7 TEX.ALCO.BEV.CODE ANN. § 109.57 (Vernon Supp.1992). Thus, the TABC allows ordinances of home- ENOCH, Justice, dissenting. rule cities to prohibit the sale of alcoholic beverages only The city of Dallas faces a severe impediment to its under limited circumstances. Pursuant to section 109.31, the redevelopment efforts for a portion of its community sale of liquor may be prohibited within residential areas (South Dallas) that suffers disproportionately from poverty only by charter. TEX.ALCO.BEV.CODE ANN. § 109.31 and crime. The Dallas Merchant's and Concessionaire's (Vernon 1978). Under section 109.32, the sale of beer may Association, the Texas Package Stores Association, Inc., be prohibited within residential areas by ordinance or charter. TEX.ALCO.BEV.CODE ANN. § 109.32 (Vernon 1978). and the five grocery and liquor store owners 1 who are These options are still available to the City. However, in petitioners in this Court all readily concede that alcohol- this case, the Ordinance attempts to prohibit the sale of related businesses are overly concentrated in certain areas of liquor and beer in non-residential areas. An ordinance may the City of Dallas, that this concentration of such businesses not prohibit the sale of beer in non-residential areas or causes severe problems in these areas, and that the City the sale of liquor in residential or non-residential areas. of Dallas adopted Ordinance No. 19694 to reduce this See TEX.ALCO.BEV.CODE ANN. §§ 109.31–32 (Vernon concentration and alleviate these problems. Today the Court 1978). adopts petitioners' argument that, regardless, the Legislature requires these matters to only be addressed by the Texas [8] Section 109.33 permits a county or city to prohibit Alcoholic Beverage Commission in Austin, and not by the the sale of alcoholic beverages by a dealer whose place Dallas City Council. As much as we all are concerned about of business is within 300 feet of a church, school, community restoration, I too would have joined the majority or public hospital. TEX.ALCO.BEV.CODE § 109.33(a) if the law required this result. But, the Court's decision is not (Vernon Supp.1992). This option is still available to the mandated by the law. Therefore I dissent.

City. 8 However, in this case, the Ordinance attempts to Ordinance No. 19694 prohibits the location of businesses prohibit the sale of alcoholic beverages within 300 feet of a selling or serving alcoholic beverages within 300 feet of residential area—not within 300 feet of a church, school or residentially zoned property in certain areas of the city public hospital. without a special use permit. The issue before us is whether this limited restriction on the location of alcohol- [9] Likewise, section 61.37 does not conflict with section related businesses is preempted by TEX.ALCO.BEV.CODE 109.57. Section 61.37 states that a city secretary will merely § 109.57(a) and (b). Section 109.57(a) provides that an certify whether an ordinance or charter prohibits the sale of ordinance “may not impose stricter standards on premises alcoholic beverages in the area where alcoholic beverages or businesses” required to be licensed under the Code than will potentially be sold. TEX.ALCO.BEV.CODE ANN. § on similar premises or businesses. (emphasis added). Section 61.37 (Vernon 1978). Under this section, certification is 109.57(b) states that “it is the intent of the legislature that properly withheld only if an ordinance or charter prohibits the this code shall exclusively govern the regulation of alcoholic *494 sale of alcoholic beverages in a manner allowed by the beverages in this state, and that except as permitted by this TABC. See TEX.ALCO.BEV.CODE ANN. § 61.37 (Vernon code, a governmental entity of this state may not discriminate 1978). against a business holding a license or permit under this code.” (Emphasis added.) We recognize the benefits of ordinances which prohibit the sale of alcoholic beverages under these circumstances. In my view, Ordinance No. 19694 does not “impose stricter However, the express language of section 109.57 compels standards on alcohol-related businesses or premises” within this court to give effect to the Legislature's clear intent— the meaning of section 109.57(a). Rather, it restricts the the Ordinance is preempted to the extent it conflicts with the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

location of such businesses in some areas under some control of the same person.” TEX.ALCO.BEV.CODE ANN. conditions. Nor does the ordinance attempt a “regulation of § 11.49(a) (Vernon 1978). Section 11.49(a) refers only to the alcoholic beverages.” The ordinance has nothing to do with physical premises; it does not define “premises” to include beverages. Nor does the ordinance “discriminate” against the location of a licensed business. The Ordinance does alcohol-related businesses. It merely imposes a restriction not attempt to regulate the physical premises. Additionally, on their location to alleviate community problems which nothing in the Ordinance addresses how the business of petitioners concede such businesses cause. 2 This Ordinance selling alcohol is to be conducted. The Ordinance only is not, on its face, inconsistent or in conflict with state law. regulates the location of the business. The ordinance is a reasonable supplement to state law to address a local problem. Both should remain in effect. The Court recognizes that a city ordinance will not be held repugnant to a general law of the state “if any Assuming for the sake of argument that “location” may be other reasonable construction leaving both in effect can be considered a type of *495 “standard” governing businesses, reached,” 852 S.W.2d at 491, (citing to City of Richardson the law would still not mandate the outcome claimed by the v. Responsible Dog Owners, 794 S.W.2d 17 (Tex.1990)). Court. The Local Government Code states: Because a reasonable reading of these two statutes prevents the conflict the reasoning of the Court creates, there is no If a zoning regulation adopted under basis for restricting the City of Dallas' grant of authority to this subchapter ... imposes higher promulgate zoning regulations under sections 211.001–.013 standards than those required under of the Local Government Code. another statute or local ordinance or regulation, the regulation adopted The Court's holding seriously hampers the ability of under this subchapter controls. If the municipalities to combat problems associated with the sale other statute or local ordinance or of alcohol. The City of Dallas did not seek to prohibit the regulation imposes higher standards, sale of alcohol, merely to disperse the locations for its sale that statute, ordinance, or regulation in order to achieve a reduction in the problems associated controls. with the sale of alcohol such as increased crime, drinking on premises, litter, loitering, public intoxication, urinating in TEX.LOC.GOV'T CODE ANN. § 211.013(a) (Vernon 1988) public, and harassment of children and elderly residents. 3 (emphasis added). As petitioners admit, if cities cannot restrict the location of alcohol-related businesses, then only the Texas Alcoholic The Court's reading of section 109.57 of the Alcoholic Beverage Commission can, in the course of granting licenses Beverage Code creates a direct conflict between it and section to businesses. Yet it would be virtually impossible for the 211.013(a). 852 S.W.2d 489, 493 n. 7. Where possible, courts Commission to obtain sufficient information in licensing are to construe language used in statutes so as to harmonize all proceedings to determine whether, how and where to impose relevant laws, not create conflict. La Sara Grain Co. v. First such restrictions in the dozens of cities where they might Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984); be used. Petitioners admit that the Commission has not State v. Standard Oil Co., 107 S.W.2d 550, 559 (Tex.1937). undertaken this responsibility to date, and it is farfetched Since it is possible, this court must construe the Local to think the Commission would even try. The suggestion Government Code and the Alcoholic Beverage Code so that that the Legislature has decided that the Commission should both provisions are given effect. address the local problems involved here instead of home-rule cities is most unlikely. Only those local planning, zoning and Section 109.57(a) prohibits a city from imposing stricter legislative bodies have, or can be expected to have, a pulse on standards on premises or businesses licensed under the the particular land use needs of their jurisdiction. Alcoholic Beverage Code than are imposed on similar premises or businesses not required to have a license. *496 I agree with the Court that “if the Legislature chooses TEX.ALCO.BEV.CODE ANN. § 109.57(a) (Vernon 1978) to preempt a subject matter encompassed by the broad (emphasis added). The Alcoholic Beverage Code defines powers of a home-rule city, it must do so with unmistakable “premises” as “the grounds and all buildings, vehicles, clarity.” 852 S.W.2d at 491. Whatever may be said of section and appurtenances pertaining to the grounds, including any 109.57, it cannot seriously be argued that the statute makes adjacent premises if they are directly or indirectly under the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)

unmistakably clear that the Legislature has preempted the City of Dallas from exercising its broad zoning powers to improve living conditions within its borders. Preemption is HECHT and CORNYN, JJ., join in this dissenting opinion. even less likely when one considers the result. All Citations I would affirm the judgment of the court of appeals, thus I 852 S.W.2d 489 respectfully dissent.

Footnotes 1 In the findings of fact, the trial court stated in part: 14. None of the SUPs filed by any Establishment within the areas zoned D–1 by Ordinance 19694 had been granted. 15. The criteria adopted by the Dallas City Council make it virtually impossible for any existing Establishment to qualify for a SUP. 16. Ordinance 19694 conflicts with and is preempted by the Texas Alcoholic Beverages Code (“TABC”), in that: the Ordinance and the SUP standards impose location restrictions that are inconsistent with the TABC; the Ordinance and the SUP standards attempt to regulate the sale of alcoholic beverages, other than beer, by ordinance; the Ordinance and the SUP standards discriminate against establishments holding permits issued under the TABC, and; the Ordinance and the SUP standards impermissibly attempt to disenfranchise the choice of the voters of the areas affected by Ordinance 19694 in violation of the Local Option provisions and procedures set forth in the TABC. 2 “[The TABC] is intended as a recodification only, and no substantive change in the law is intended by this Act.” Acts 1977, 65th Leg., ch. 194, § 7. 3 While the dissent contends that the legislature did not deny home rule cities the ability to regulate with unmistakable clarity under these circumstances, how much more clear must the legislature be than Section 109.57(b), which states: “It is the intent of the legislature that this code [TABC] shall exclusively govern the regulation of alcoholic beverages in this state....” TEX.ALCO.BEV.CODE ANN. § 109.57(b) (Vernon Supp.1992). In addition, Senator McFarland, who was a member of the Conference Committee on H.B. 1652 which enacted Section 109.57, indicated that Section 109.57 was intended to clarify that the TABC governed the location of licensees and permittees and that cities could only regulate the location of licensees and permittees in the instances provided by the TABC. Specifically, Senator McFarland stated, [I]t [Section 109.57] says except as authorized by this code [a governmental entity may not regulate the location of a business holding a license or a permit] and there's numerous provisions throughout the code which governmental entities have the authority by zoning or other ordinances, to limit the location of businesses or the type of businesses selling alcoholic beverage. Debate of conference committee report on Tex.H.B. 1652 on the floor of the Senate, 70th Leg. (June 1, 1987) (colloquy between Senators McFarland and Washington). 4 Section 109.57(d) of the TABC states: (d) This section does not effect the authority of a governmental entity to regulate, in a manner as otherwise permitted by law, the location of: (1) a massage parlor, nude modeling studio, or other sexually oriented business; or (2) an establishment that derives 75 percent or more of the establishment's gross revenue from the on-premise sale of alcoholic beverages. Because none of the parties assert that the Ordinance implicates this provision, we express no opinion concerning its applicability. Since the following cases pre-date the enactment of section 109.57, they are not applicable when determining the preemptive effect of section 109.57. See Abilene Oil Distributors v. City of Abilene, 712 S.W.2d 644 (Tex.App.— Eastland 1986, writ ref'd n.r.e.); Young, Wilkinson & Roberts v. City of Abilene, 704 S.W.2d 380 (Tex.App.—Eastland 1985, writ ref'd n.r.e.); T & R Assoc., Inc. v. City of Amarillo, 688 S.W.2d 622, 625 (Tex.Civ.App.—Amarillo, writ ref'd n.r.e.); Massengale v. City of Copperas Cove, 520 S.W.2d 824, 829 (Tex.Civ.App.—Waco 1975, writ ref'd n.r.e.; Derkard v. City of Port Lavaca, 491 S.W.2d 748, 751 (Tex.Civ.App.—Corpus Christi 1973, no writ); City of Clute v. Linscomb, 446 S.W.2d 377 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Discount Liquors No. 2, Inc. v. Texas Liquor Control Board, 420 S.W.2d 422, 423, 425 (Tex.Civ.App.—Amarillo 1967, writ ref'd n.r.e.); Louder v. Texas

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Liquor Control Board, 214 S.W.2d 336 (Tex.Civ.App.—Beaumont 1948, writ ref'd n.r.e.); Eckert v. Jacobs, 142 S.W.2d 374 (Tex.Civ.App.—Austin 1940, no writ). 5 The dissent argues that if this court holds that the TABC preempts an ordinance regulating where alcoholic beverages are sold, sellers of alcoholic beverages will not have to comply with any city ordinance. This argument is without merit. Section 109.57(a) provides that an ordinance may not impose stricter standards on alcohol related businesses than on non-alcohol related businesses. TEX.ALCO.BEV.CODE § 109.57(a) (Vernon Supp.1992). For example, under section 109.57(a), an ordinance requiring all businesses with the same kind of premises to have a fire extinguisher on their premises would not violate section 109.57(a). On the other hand, an ordinance requiring an alcohol related business to have two fire extinguishers and only required a non-alcohol related business with the same kind of premises to have one fire extinguisher would violate section 109.57(a). 6 Section 61.37 reads in pertinent part: (a) The County Clerk of the county in which an application for a license is made shall certify whether the location or address given in the application is in a wet area and whether the sale of alcoholic beverages for which the license is sought is prohibited by any valid order of the commissioners court. (b) The city secretary or clerk of the city in which an application for a license is made shall certify whether the location or address given in the application is in a wet area and whether the sale of alcoholic beverages for which the license is sought is prohibited by charter or ordinance. TEX.ALCO.BEV.CODE ANN. § 61.37 (Vernon 1978). Section 109.31 reads: A city by charter may prohibit the sale of liquor in all or part of the residential sections of the city. TEX.ALCO.BEV.CODE ANN. § 109.31 (Vernon 1978). Section 109.32 reads in pertinent part: (a) An incorporated city or town by charter or ordinance may: (1) prohibit the sale of beer in a residential area; and (2) regulate the sale of beer and prescribe hours when it may be sold, except a city or town may not permit the sale of beer when its sale is prohibited by this code. TEX.ALCO.BEV.CODE ANN. § 109.32 (Vernon 1978). Section 109.33 reads in pertinent part: (a) The commissioners court of a county may enact regulations applicable in areas in the county outside an incorporated city or town, and the governing board of a city or town may enact regulations applicable in the city or town, prohibiting the sale of alcoholic beverages by a dealer whose place of business is within 300 feet of a church, public school, or public hospital. TEX.ALCO.BEV.CODE ANN. § 109.33 (Vernon Supp.1992). 7 The dissent incorrectly asserts that Section 211.013 of the Local Government Code allows a home rule city to impose higher standards upon licensees and permittees. This conclusion is erroneous because of Section 109.57(a) of the TABC. Section 109.57(a) states than an ordinance promulgated by a governmental entity may not impose stricter standards on premises or businesses of a permittee than on similar premises and businesses not required to have a license or permit. The Ordinance imposes a stricter standard than allowed by the TABC, specifically, by regulating the location of businesses required to have licenses or permits under the TABC in circumstances not allowed by the TABC. Section 109.57(a) was by its terms enacted to exempt licensees and permittees from Section 211.013 of the Local Government Code. The application of the doctrine of expressio unius est exclusio alterius further demonstrates the weakness of the dissent's conclusion that the City may regulate in this instance. That doctrine provides that the inclusion of a specific limitation excludes all others. Royer v. Ritter, 531 S.W.2d 448, 449 (Tex.Civ.App.—Beaumont 1976, writ ref'd n.r.e.). Sections 109.31–33 and 109.57(d) provide specific instances when a governmental entity, such as a home-rule city, may regulate the location of an alcohol related business. Thus, by expressly stating under what circumstances a governmental entity may regulate the location of an alcohol related business, it follows that there are no other instances when a governmental entity may regulate the location of an alcohol related business. The parties do not assert and we can not find any applicable grant of power to governmental entities to regulate the location of the sale of alcohol in this case. 8 In addition to regulating alcoholic beverages pursuant to sections 109.31–33, a city may make recommendations or protest the issuance of a permit by the Texas Alcoholic Beverage Commission. See TEX.ALCO.BEV.CODE ANN. § 11.41(a) (Vernon 1978). 1 The five business owners are Solomon Tadesse, d/b/a S & M Grocery, Nguyen Ha Lam, d/b/a M & D Liquor, Son Ngoc Nguyen, d/b/a Bingo Liquor, Youg Suk Bragdon, d/b/a K & B Grocery, and Thung Vam Tarn, d/b/a Lee's Grocery. 2 This is not to say that any ordinance restricting the location of alcohol-related businesses would be allowed by state law. Obviously, an ordinance that prohibited the location of such businesses within a much larger distance from residential

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property might have the effect of eliminating those businesses altogether. Such an ordinance would conflict with state law. But an ordinance which is both written and applied to impose a limited restriction on location for a valid purpose does not conflict with section 109.57. 3 Several community leaders in the South Dallas/Fair Park area testified that these problems were exacerbated by the excessive concentration of alcohol related businesses in the area.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Hager v. Romines, 913 S.W.2d 733 (1995)

of error. We sustain point of error one, reverse the judgment entered for the Romineses, and render judgment for Hager. 913 S.W.2d 733 Court of Appeals of Texas, [1] In his first point of error, Hager argues that the trial Fort Worth. court erred when it overruled his motion for instructed verdict Anthony Ray HAGER, Individually and because the Romineses presented no evidence of a violation d/b/a Hager's Flying Service, Appellant, of the standard of care applicable to their claim of negligence. v. The Romineses claimed that Hager was negligent in his application of herbicide to a nearby field and that their tomato Thomas R. ROMINES and and jalapeño plants were damaged because of the negligence. Betty Romines, Appellees. In reviewing whether the trial court erred in refusing to No. 2–95–066–CV. | Dec. 28, 1995. instruct a verdict in Hager's favor, our task is to determine whether: (1) a specified defect in the opponent's pleading Farmers whose crop was allegedly damaged by aerial makes it insufficient to support a judgment; (2) the evidence applicator's crop dusting of nearby field sued applicator for conclusively establishes the right of the movant to judgment negligence. The 97th District Court, Clay County, Roger E. or negates the right of the opponent; or (3) the evidence Towery, J., denied defendant's motion for instructed verdict is insufficient to raise a fact issue that must be established and awarded damages on jury verdict for plaintiffs. Defendant before the opponent is entitled to judgment. Boswell v. Farm appealed. The Court of Appeals, Livingston, J., held that & Home Sav. Ass'n, 894 S.W.2d 761, 768 (Tex.App.—Fort plaintiffs could not recover absent evidence that defendant did Worth 1994, writ denied); Rowland v. City of Corpus Christi, not act as reasonably prudent aerial applicator. 620 S.W.2d 930, 932–33 (Tex.Civ.App.—Corpus Christi 1981, writ ref'd n.r.e.); see also TEX.R.CIV.P. 268. Reversed and rendered. [2] [3] To avoid an instructed verdict, the Romineses had to offer evidence for each element of their negligence claim. Attorneys and Law Firms The elements of a negligence claim are: (1) the existence of a duty on the part of one party to another; (2) a breach *734 Stephen C. Howell, Stephen L. Tatum, Geffrey W. of the duty; (3) damages to whom the duty was owed; and Anderson, Brown, Herman, Scott, Dean & Miles, L.L.P., Fort (4) causation. See Rosas v. Buddies Food Store, 518 S.W.2d Worth, for appellant. 534, 536 (Tex.1975). For breach of duty, they must have Ron Poole, William K. Altman & Associates, Wichita Falls, presented evidence that Hager did not exercise the care that for appellee. a reasonably prudent aerial applicator would have exercised under the same or similar circumstances. See Parkway Co. Before LIVINGSTON, BRIGHAM and HOLMAN, JJ. v. Woodruff, 857 S.W.2d 903, 919 (Tex.App.—Houston [1st Dist.] 1993, no writ), aff'd as modified, 901 S.W.2d 434 (Tex.1995). We find that the standard of care in the aerial OPINION *735 application of herbicide, as well as the violation of such standard, must be established by expert testimony. LIVINGSTON, Justice. Expert testimony is necessary when the alleged negligence is of such a nature that it is not within the experience of a Thomas and Betty Romines grew tomatoes and jalapeños layman. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). Not on one-half acre of land in Clay County, Texas. When their only is flying an airplane not within the realm of experience plants began dying from exposure to herbicide, they sued Hager Flying Service and Anthony Ray Hager, who had of the ordinary, prudent person or juror, 1 applying herbicide applied herbicide from a crop dusting airplane to a nearby and pesticide aerially requires use of specialized equipment field the same day the Romineses noticed that their tomato and techniques that are not familiar to the ordinary person. plants were sick. At trial, the court denied Hager's motion for instructed verdict. The jury awarded Thomas and Betty [4] [5] Thus, the question before us is whether the Romines $45,000 as damages. Hager appeals in five points Romineses presented sufficient evidence of breach of the duty of care to raise a fact issue on that element. We hold that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Hager v. Romines, 913 S.W.2d 733 (1995)

applicator. In fact, Pluenneke did not even know whether they did not. Hager testified as an expert about the standard Hager had applied the herbicide with a coarse or fine spray, of care applicable to aerial applicators. He also testified that which could affect the herbicide's ability to drift. he had not breached that standard of care. A party may give expert testimony if the party is qualified to do so. See, e.g., On appeal, the Romineses claim that Hager's testimony on Tijerina v. Wennermark, 700 S.W.2d 342, 347 (Tex.App. —San Antonio 1985, no writ), overruled on other grounds cross-examination shows that he violated the standard of care. by Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex.1989). The Romineses' attorney asked Hagar, “[W]ould you agree Further, if expert testimony is required on an issue, and that, if it was some Grazon P + D out of your airplane on that expert testimony is uncontroverted, the testimony is June 3rd, 1990, that got on the Romines tomato field, that you considered conclusively established. Mack v. Moore, 669 would have been negligent?” Hagar agreed. The Romineses S.W.2d 415, 419 (Tex.App.—Houston [1st Dist.] 1984, no say that this is expert testimony of a violation of the standard writ). The Romineses needed to controvert Hager's testimony of care because they proved that it was Hager's Grazon P + D that caused the damage to the tomato and jalapeño plants. with their own expert testimony so that Hager's testimony Two witnesses observed from one-half mile away that Hager's about his compliance with the standard of care would not be crop dusting airplane flew over the Romineses' home. Two conclusive. witnesses testified that they could smell the spray even though they were upwind from the field that Hager sprayed. One [6] The Romineses called two expert witnesses, Floyd testified that he could see “stuff” drifting in the air. However, Mahaney and Ricks Pluenneke. Mahaney was a herbicide and independent of causation evidence, Hager's testimony does pesticide specialist with the Texas Department of Agriculture not indicate that he did not adhere to the standard of care. who testified about the effect of herbicide on tomato plants. The Romineses' argument is an attempt to bootstrap lay He also testified about a possible “drift pattern” between the witnesses' testimony on causation into expert testimony on Romineses' tomato field and the field to which Hager had a violation of the standard of care. No expert witness ever applied herbicide. He concluded that herbicide might have testified that Hager had violated the standard of care. Because drifted because weeds between the two fields showed effects the Romineses failed to present evidence on a breach of the from herbicide. However, he could not identify the herbicide standard *736 of care, their claim should not have been that hurt the tomatoes as Grazon P + D, the herbicide that submitted to a jury. Hager had sprayed. He did not testify about herbicide effects on jalapeño plants. Also, he did not give any testimony that Accordingly, we reverse the judgment of the trial court and showed that Hager had not acted as a reasonably prudent render judgment that the Romineses take nothing against aerial applicator. Hager. Pluenneke was an expert on plant physiology and agronomy. He testified that Hager had caused the damage to the tomato All Citations and jalapeño plants based on his knowledge of the plants involved and of the herbicide. However, this is not testimony 913 S.W.2d 733 that Hager had not acted as a reasonably prudent aerial

Footnotes 1 McKinney v. Air Venture Corp., 578 S.W.2d 849, 851 (Tex.Civ.App.—Fort Worth 1979, writ ref'd n.r.e.).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Jackson v. Neal, Not Reported in S.W.3d (2009) 2009 WL 140507

2009 WL 140507 I. Background Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR A. Order Transferring Venue DESIGNATION AND SIGNING OF OPINIONS. Valdez filed a motion to transfer venue from DeWitt County MEMORANDUM OPINION to Nueces County asserting that DeWitt County was not a Court of Appeals of Texas, county of proper venue because the Jacksons pleaded no facts Corpus Christi-Edinburg. to support venue there. Valdez pleaded facts supporting venue in Nueces County under the general venue statute and also Phillip JACKSON and Mary Jackson, Appellants, urged that transfer of venue was for the convenience of the v. parties. See id. § 15.002(a)(1)-(3), (b) (Vernon 2002). Without Mayor Samuel Loyd NEAL and District challenging the facts relied upon by Valdez, the Jacksons Attorney Carlos Valdez, Appellees. argued in their response that venue was proper in DeWitt County because they would be prejudiced by the transfer. No. 13-07-00164-CV. | Jan. 22, 2009. Prior to submission of the motion, Phillip requested that a bench warrant be issued. It appears from the record, however, On appeal from the 28th District Court of Nueces County, that no hearing was held and, on November 16, 2006, after Texas, Nanette Hasette, J. considering the motion by written submission, the trial court transferred the case to Nueces County. The order did not Attorneys and Law Firms specify the grounds upon which the transfer was granted. Phillip Jackson, Mary J. Jackson, Corpus Christi, TX, pro se. On December 19, 2006, the Jacksons appealed the order Jenny C. Boyd, Asst. County Atty., Carol Estes Bray, Asst. transferring venue. In March 2007, this Court dismissed City Atty., Corpus Christi, TX, for Appellees. the appeal for lack of jurisdiction. See Jackson v. Neal, No. 13-06-700-CV, 2007 Tex.App. LEXIS 1786, *2, 2007 Before Chief Justice VALDEZ and Justices RODRIGUEZ WL 687289 (Tex.App.-Corpus Christi Mar.8, 2007, no and BENAVIDES. pet.)(mem.op.) (per curiam) (dismissing the appeal because the law does not provide for judicial review of an interlocutory order transferring venue) (citing TEX. CIV. MEMORANDUM OPINION PRAC. & REM.CODE ANN. § 15.064 (Vernon 2002); TEX.R.APP. P. 42.3(a)). Memorandum Opinion by Justice RODRIGUEZ.

*1 Appellant, Phillip Jackson, a prison inmate, appeals, pro se, on behalf of himself and his mother, appellant B. Order Granting Neal's Mary Jackson. The Jacksons filed suit in DeWitt County Motion for Summary Judgment against appellees, former Mayor Samuel Loyd Neal and Neal filed a motion for summary judgment and severance. District Attorney Carlos Valdez. 1 By their suit, the Jacksons In his supporting affidavit, Neal set out that he had neither challenged civil forfeiture proceedings. The trial court involvement in nor knowledge of the seizure or forfeiture granted summary judgment in favor of Neal and dismissed, proceedings relevant to this case. The Jacksons responded without prejudice, the Jacksons' claims under chapter 14 of arguing that Neal was the “head of” and the “key factor in” the the Texas Civil Practice and Remedies Code. SeeTEX. CIV. civil conspiracy, “was directly involved with the theft, grand PRAC. & REM.CODE ANN. § 14.001-.014 (Vernon 2002) theft and fraud,” and entered “into [an] agreement with all (setting out the process for certain inmate litigation). Eight other defendant[s] to take [their] property by a[n] illegal and issues are presented for our review. We affirm. unconstitutional manner.”The Jacksons attached no evidence to their response. On February 8, 2007, the trial court granted the motion, entered summary judgment against the Jacksons,

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and ordered that they take nothing as to all claims against behalf of Mary. Moreover, Mary neither filed a brief nor Neal. The trial court did not sever the claims against Neal. adopted Phillip's appellate brief and reply briefs. With these limitations in mind, we proceed to the merits of the appeal.

C. Order Granting Valdez's Motion to Dismiss III. Venue Issues *2 Valdez filed a motion to dismiss and to assess costs. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 14.001-014 By issues five, six, and seven, Phillip challenges the order (Vernon 2002). Valdez argued that Phillip did not comply transferring venue from DeWitt County to Nueces County. with mandatory declaration requirements of section 14.004(a) He asserts that venue was proper in DeWitt County and that and failed to file a certified copy of his trust account he was prejudiced when the case was transferred to Nueces statement in accordance with section 14.006(f).See id. §§ County. 14.004(a); 14.006(f); see also id. § 14.003(a)(2), (b)(4). Philip filed his response asserting that he had fulfilled all chapter 14 requirements. On February 8, 2007, following a A. Applicable Law and Standard of Review hearing where Mary appeared but Phillip did not, 2 the trial court granted Valdez's motion and ordered that the case be Section 15.002 of the civil practice and remedies code dismissed without prejudice. The trial court denied Valdez's provides as follows: request to assess fees. This appeal ensued. (a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought:

II. The Pro Se Appellants (1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; As parties, Phillip and Mary may each appear in his or her own person, and each may prosecute or defend his or her own *3 (2) in the county of defendant's residence at the time rights. SeeTEX.R. CIV. P. 7 (“Any party to a suit may appear the cause of action accrued if defendant is a natural and prosecute or defend his rights therein, either in person or person; by an attorney of the court.”). Because they are not attorneys, however, they may not represent others. SeeTEX. GOV'T (3) in the county of the defendant's principal office in this CODE ANN. § 81 .102(a) (Vernon 2005) (setting out state state, if the defendant is not a natural person; or bar membership requirements); Jimison v. Mann, 957 S.W.2d (4) if Subdivisions (1), (2), or (3) do not apply, in the county 860, 861 (Tex.App.-Amarillo 1997, no writ) (per curiam) in which the plaintiff resided at the time of the accrual (striking documents filed by a layperson having no authority of the cause of action. to file them on behalf of another); see also Shafer v. Frost Nat'l Bank, No. 14-06-00673-CV, 2008 Tex.App. LEXIS (b) For the convenience of the parties and witnesses and in 3676, ----10-14, 2008 WL 2130418 (Tex.App.-Houston [14th the interest of justice, a court may transfer an action ... Dist.] May 22, 2008, no pet.)(mem.op.) (concluding that a pro where the court finds: se plaintiff unlicensed to practice law may not represent or defend the rights of other pro se plaintiffs); Clary v. Cockrell, (1) maintenance of the action in the county of suit would No. 12-02-00319-CV, 2004 Tex.App. LEXIS 5983, *2, n. work an injustice to the movant considering the movant's 1, 2004 WL 1475103 (Tex.App.-Tyler June 30, 2004, no economic and personal hardship; pet.)(mem. op. designated for publication) (providing that pro (2) the balance of interests of all the parties predominates in se inmate Clary, who is not an attorney, may not represent favor of the action being brought in the other county; and other named parties). (3) the transfer of the action would not work an injustice Phillip is not an attorney and may not represent or defend the to any other party. rights of Mary. Therefore, we consider Phillip's arguments only to the extent the arguments relate to his own claims or rights. We do not address any arguments made on

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natural persons, resided in Nueces County at the time the (c) A court's ruling or decision to grant or deny a transfer cause of action, if any, accrued, and (3) the principal offices under Subsection (b) is not grounds for appeal or of all identified defendants were in Nueces County. SeeTEX. mandamus and is not reversible error. CIV. PRAC. & REM.CODE ANN. § 15.002(a)(1)-(3). Phillip did not specifically deny any of the sworn venue facts asserted TEX. CIV. PRAC. & REM.CODE ANN. § 15.002 (Vernon by Valdez; therefore, Valdez's venue facts must be considered 2002).“A party who seeks to maintain venue of the action in true. TEX.R. CIV. P. 87(3). And, because subsections (1), a particular county” in reliance on section 15.002, the general (2), and (3) apply to this case, subsection (4) does not, and venue rule of the civil practice and remedies code, “has the Phillip's residence is not a factor in determining proper venue. burden to make proof ... that venue is maintainable in the SeeTEX. CIV. PRAC. & REM.CODE ANN. § 15.002(a)(1)- county of suit.”TEX.R. CIV. P. 87(2).“A party who seeks (4). Thus, the facts undisputably show proper venue in Nueces to transfer venue of the action to another specified county” County. under section 15.002 or under mandatory venue sections 15.011-15.017, “has the burden to make proof ... that venue is maintainable in the county to which transfer is sought.”See id.The trial court shall transfer venue to a county of proper 2. Convenience jurisdiction if the county in which the action is pending is not a proper county. TEX. CIV. PRAC. & REM.CODE ANN. § In this case, Valdez also asserted convenience as a basis 15.063(1) (Vernon 2002). for transfer. The trial court granted the transfer without specifying the grounds. “Generally, we must affirm such In determining whether venue was proper, we must consider general orders if any ground in the accompanying motion is the entire record. Id.§ 15.064(b); Wilson v. Tex. Parks & meritorious.”Garza v. Garcia, 137 S.W.3d 36, 37 (Tex.2004). Wildlife Dep't, 886 S.W.2d 259, 260-62 (Tex.1994). If there When a motion asserts convenience as well as other grounds, is any probative evidence in the record demonstrating venue the statute precludes reversal on convenience grounds. was proper in the county where judgment was rendered, we SeeTEX. CIV. PRAC. & REM.CODE ANN. § 15.002(c). must uphold the trial court's ruling. See Bonham State Bank Because the motion here asserted convenience as one ground, v. Beadle, 907 S.W.2d 465, 471 (Tex.1995); Morris v. Tex. and the statute precludes reversal of any ruling made on Parks & Wildlife Dep't, 226 S.W.3d 720, 723 (Tex.App.- convenience grounds, we must affirm the transfer. Garza, Corpus Christi 2007, no pet.). Furthermore, we take as true 137 S.W.3d at 39 (“We acknowledge the court of appeals' [a]ll venue facts, when properly pleaded, ... unless specifically concern that the usual presumption in favor of nonspecific denied by the adverse party.” TEX.R. CIV. P. 87(3). orders will make many venue orders ‘immune from review.’ But in transfer orders based on convenience, that appears to have been precisely the Legislature's intent.”).

B. Analysis

3. Mandatory Venue 1. Proper Venue Phillip argues that section 15.019, a mandatory venue section Valdez argues, and we agree, that Phillip pleaded no facts for inmate litigation, applies. SeeTEX. CIV. PRAC. & to support venue in DeWitt County under the general venue REM.CODE ANN. § 15.019 (Vernon 2002) (“[A]n action statute and, thus, did not meet his burden of proof that venue that accrued while the plaintiff was housed in a facility was maintainable in the county of suit. See id. 87(2)(a). operated by or under contract with the Texas Department Valdez did, however, meet his burden of proving that venue of Criminal Justice shall be brought in a county in which is maintainable in Nueces County, Texas, the county to which the facility is located.”). This argument, however, was not transfer is sought. See id. raised in the trial court and is, therefore, waived. See In the Interest of B.L.D., 113 S.W.2d 340, 350-52 (Tex.2008). *4 Valdez set out in his motion to transfer that venue is Moreover, this provision does not apply to Phillip. Section proper in Nueces County because (1) all or a substantial 15.019 provides for venue in the county of incarceration if part of the events or omissions giving rise to Phillip's claim the cause of action accrued while the inmate was incarcerated occurred in Nueces County, (2) defendants Neal and Valdez, in that county. SeeTEX. CIV. PRAC. & REM.CODE ANN.

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§ 15.019. The facts show that Phillip, although an inmate in without reference to any guiding rules or principles; whether DeWitt County when the lawsuit was filed, was not an inmate the act was arbitrary or unreasonable.Downer v. Aquamarine in DeWitt County at the time the cause of action allegedly Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). arose. Thus, this argument fails. “It is well-established that litigants cannot be denied access to the courts simply because they are inmates.”In the Interest of Z.L.T., 124 S.W.3d at 165 (citing Hudson v. Palmer, 468 4. Fair and Impartial Trial U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). Phillip also argues that transfer of the case to Nueces County However, an inmate does not have an absolute right to appear prejudiced him because Valdez is the “most powerful man in person in every court proceeding. Id.;Pedraza, 960 S.W.2d in Nueces County, Texas” and he “would not receive a fair at 342. “[T]he inmate's right of access to the courts must be proceeding.”Phillip and Mary each filed affidavits stating that weighed against the protection of our correctional system's a transfer of venue to Nueces County would prejudice both integrity.”Z.L.T., 124 S.W.3d at 165,see Pedraza, 960 S.W.2d plaintiffs and that there [was] a combination against [them] at 342. The supreme court identified the following factors that instigated by influntial [sic] persons by reason of which [they the trial court should consider when deciding whether to grant could not] expect a fair and impartial trial ... in ‘Nueces a request for a bench warrant: County.’ ” The assertions made by Phillip track the language the cost and inconvenience of of Texas Rule of Civil Procedure 257. SeeTEX.R. CIV. P. transporting the prisoner to the 257. Phillip's use of this rule, however, is misplaced. Rule courtroom; the security risk the 257 provides that the inability to obtain a fair and impartial prisoner presents to the court and trial of a civil case may be grounds for a transfer of venue. public; whether the prisoner's claims Id. Phillip uses the rule as a defensive measure to support the are substantial; whether the matter's maintenance of his action in DeWitt County. Even were we to resolution can reasonably be delayed consider Phillip's argument, a motion based on rule 257 must until the prisoner's release; whether the be supported by competent affidavits of the party seeking the prisoner can and will offer admissible, transfer and three credible residents of the county where the noncumulative testimony that, cannot suit is pending. See id.;Acker v. Denton Publ'g, 937 S.W.2d be effectively presented by deposition, 111, 118 (Tex.App.-Fort Worth 1996, no writ). Phillip did telephone, or some other means; not satisfy this requirement. Therefore, this argument is also whether the prisoner's presence is without merit. 3 We overrule Phillip's venue issues five, six, important in judging his demeanor and and seven. credibility; whether the trial is to the court or a jury; and the prisoner's probability of success on the merits. 5. Due Process Z.L.T., 124 S.W.3d at 165;see Pedraza, 960 S.W.2d at 342. *5 By his third issue, Phillip generally argues that he was The trial court has no responsibility to independently inquire “denied due process of law in the first hearing by the denial into the applicability of the factors; rather, the inmate has the [of] the opportunity to be heard.”By the language in his brief, burden to establish his right to relief. See Z.L.T., 124 S.W.3d Phillip appears to be arguing that he was denied due process at 166. If the inmate fails to identify with sufficient specificity when the trial court did not allow him the opportunity to the grounds for the ruling he seeks under the factors identified present evidence at a hearing on Valdez's motion to transfer above, the trial court does not abuse its discretion in denying venue after Phillip requested a bench warrant. his request. See id.

We review a trial court's denial of a bench warrant motion for In his motion for a bench warrant, Jackson requested the an abuse of discretion. See In the Interest of Z.L.T., J.K.H.T., following: and Z.N.T., 124 S.W.3d 163, 165 (Tex.2003); Pedraza v. Now comes, Phillip Jackson # Crossroads Security Sys., 960 S.W.2d 339, 342 (Tex.App.- 1189921, pro se, humbly request the Corpus Christi 1997, no pet.). To determine whether a trial Honorable Court to issue a order court abused its discretion, we must decide whether it acted

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from the bench, for a bench warrant review. 5 We overrule Phillip's reply issues regarding the for Phillip Jackson, that I may be summary judgment granted in favor of Neal. present at the hearing on November 16, 2006 and said order to the sheriff of DeWitt County to deliver Phillip Jackson to the Honorable Court for V. Motion to Dismiss Issues said hearing. Thank you! Plaintiff['s] address, Stevenson Unit, 1525 FM A. Rulings on Phillip's Motions 766, Cuero, Texas 77954. By his first two issues, Phillip complains that he was denied *6 On November 16, 2006, the trial court granted Valdez's due process when the trial court dismissed his claims before motion to transfer the case to Nueces County without issuing ruling on two motions-Phillip's motion to stay the proceedings a bench warrant, thereby impliedly denying Phillip's request. and Phillip's motion to proceed in forma pauperis-while his See Z.L.T., 124 S.W.3d at 165. Phillip's bench warrant motion appeal of the order transferring venue was pending. 6 We contains no information by which the trial court could assess disagree. the necessity of his appearance at a venue hearing. The motion contains no basis or argument for granting the motion. Pedraza, 960 S.W.2d at 342. It does not reference any of the factors identified in Z.L.T. See In the Interest of Z.L.T., 124 1. Motion to Stay S.W.3d at 165-66. As in Z.L.T., the only information in the An appeal from an interlocutory order does not stay the motion pertinent to Phillip's request is that he is incarcerated commencement of a trial or other proceedings in the trial in Cuero, Texas, over 100 miles from Nueces County. See court, except in limited circumstances. SeeTEX. CIV. PRAC. id. at 166 (noting that the only relevant information in the & REM.CODE ANN. § 51.014 (Vernon 2008). None of the bench warrant motion was that the prisoner was incarcerated specific circumstances apply in this case. See id.Additionally, “more than 200 miles from the trial court”). Because Phillip rule 29 .5 of the Texas Rules of Appellate Procedure sets failed to meet his burden to prove his entitlement to a bench out that the trial court retains jurisdiction during an appeal warrant, we cannot say the trial court abused its discretion in of an interlocutory order and, unless prohibited by statute, implicitly denying Phillip's request for a bench warrant. See may make any rulings or orders that do not interfere with id.We overrule Phillip's third issue. temporary orders issued by the court of appeals or with the appellate court's jurisdiction. TEX.R.APP. P. 29.5.

IV. Summary Judgment Issues *7 In this case, there are no statutory restrictions that apply to the trial court making further rulings, seeTEX. CIV. PRAC. Phillip does not challenge the summary judgment granted & REM.CODE ANN. § 51.014; the trial court's rulings in favor of Neal in his original brief. In his reply brief, did not interfere with temporary orders because none were Phillip, for the first time, challenges the propriety of issued; and, the rulings did not interfere with our jurisdiction the summary judgment on due process grounds, after because we concluded that we had none. See Jackson, No. Neal raised facts related to these issues in his responsive 13-06-700-CR, 2007 Tex.App. LEXIS 1786, at *2, 2007 WL brief. 4 SeeTEX.R.APP. P. 38.3. 687289.Therefore, the trial court did not deny Phillip due process when it granted Valdez's motion to dismiss without Rule 38.3 states that the “appellant may file a reply brief ruling on Phillip's motion to stay. addressing any matter in the appellee's brief.”Id. However, an appellant may not use a reply brief to raise new issues. Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex.App.-San 2. Motion to Proceed in Forma Pauperis Antonio 2003, pet. denied); see Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex.1996) (declining Again, Phillip has made no concise argument with citation to to consider issue first raised in reply brief). Because Phillip authorities and to the record in support of his contention that failed to raise his due process challenges in his initial brief, the trial court denied him due process when it failed to rule we conclude that he has waived these complaints for appellate on his motion for pauper status before it dismissed his claim

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and while the venue appeal was pending. SeeTEX.R.APP. P. 38.1(i). Indeed, it is his claim of poverty, not the ruling he seeks on his motion, that mandates the requirements of V. Remaining Issues chapter 14. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 14.002(a). The trial court's dismissal was not based on Phillip presents two additional issues for our review. In issue Phillip's failure or his inability to pay fees. It was based on four, Phillip claims that he has suffered a monetary and Phillip's non-compliance with requirements of chapter 14. We property loss by appellees' illegal forfeiture action or seizure overrule Phillip's first and second issues. without any violation of chapter 59 of the Texas Code of Criminal Procedure or federal law. Phillip does not, however, develop his arguments regarding this issue and does not provide this Court with appropriate citations to authorities and B. Chapter 14 Requirements to the record. SeeTEX.R.APP. P. 38.1(i). Because this issue In his responsive brief, Valdez asserts that appellant's claim is inadequately briefed, we overrule Phillip's fourth issue. is frivolous because Phillip failed to sufficiently set forth the operative facts regarding a previous filing and failed to submit *8 By his eighth issue, Phillip asks, “Did the Stevenson a certified copy of his trust account. SeeTEX. CIV. PRAC. Unit mailroom enter into a conspiracy with the appellee ... & REM.CODE ANN. §§ 14.004(a); 14.006(f). By a reply by the delayed notice date on November 19, 2007[sic] and was not give [sic] to the appellant until November 28, 2007. issue, Phillip claims, for the first time, that he satisfied the [sic]” Phillip brings this argument for the first time on appeal; requirements of chapter 14 of the Texas Civil Practice and therefore, his eighth issue is waived. See B.L.D., 113 S.W.2d Remedies Code, and, thus, the trial court abused its discretion at 350-52. in dismissing his claim. SeeTEX.R.APP. P. 38.3. However, as set out above, the rules of appellate procedure do not allow an appellant to include in his reply brief a new issue that responds to a matter that was raised in the appellee's brief but VI. Conclusion that was not raised in the appellant's original brief. Id.;Lopez, 131 S.W.3d at 61;see Anderson Producing, 929 S.W.2d at We affirm. 424. Because Phillip failed to raise this chapter 14 issue in his initial brief, he has waived these complaints for our review. All Citations We overrule Phillip's reply issues regarding the trial court's granting of the motion to dismiss. Not Reported in S.W.3d, 2009 WL 140507

Footnotes 1 The Jacksons also identify the City of Corpus Christi, John Doe, and Jane Doe as appellees. However, we find nowhere in the record that they were served with citation. Only Valdez and Neal answered and participated in the proceedings below. Therefore, based on our review of the record, the City and John and Jane Doe were never parties to the lawsuit and, therefore, cannot be appellees in this appeal. 2 Mary's appearance at the hearing is not supported by the record but is undisputed by Valdez. No reporter's record of the hearing has been filed in this appeal. From our review of the appellate record, the hearing, if any, on February 7, 2007, was for the purpose of presenting Valdez's motion to dismiss. It is not clear whether Neal's motion for summary judgment was argued at the hearing. The orders granting the two motions were both signed on February 8, 2007. 3 Phillip also argues that rule 259 applies. SeeTEX.R. CIV. P. 259 (providing that if a motion under rule 257 is granted, the cause shall be removed, if a county of proper venue cannot be found, from a district court to any county in the same or an adjoining district or to any district where an impartial trial can be had). This argument was not raised in the trial court and is, therefore, waived. See In the Interest of B.L.D., 113 S.W.2d 340, 350-52 (Tex.2008). Even had Phillip not waived the argument, rule 259 applies only when a rule 257 motion is granted. In this case, the trial court did not grant such a motion. 4 Phillip complains of the trial court's alleged failure to bench warrant him for the February 2007 hearing. He also asserts that he did not receive notice of the granting of the summary judgment. 5 We also note that Phillip provides no further argument with record cites and citation to authority to support these contentions. SeeTEX.R.APP. P. 38.1(i) (providing that this court will only consider contentions that are supported by clear

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and concise arguments with appropriate citations to authorities and the record); Moser v. Roberts, 185 S.W.3d 912, 916 (Tex.App.-Corpus Christi 2006, no pet.). Therefore, Phillip has waived error because the issues are inadequately briefed. In addition, we have not found a motion for a bench warrant requesting Phillip's appearance at this February hearing or facts regarding notice of the granting of the summary judgment in the appellate record. 6 Phillip alleges that the trial court agreed, in open court, not to rule on Valdez's motion to dismiss until the appeal of the venue order was concluded; however, he provides no record support for this assertion. SeeTEX.R.APP. P. 38.1(i). Therefore, we will not address arguments related to the trial court's alleged agreement to stay the proceedings in this case.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014) 57 Tex. Sup. Ct. J. 1005

Andrew L. Kerr, Cynthia E. Ellis Rosen, John Alex 438 S.W.3d 556 Huddleston, Strasburger & Price LLP, San Antonio, TX, for Supreme Court of Texas. Petitioner. Gary Wayne JASTER, Petitioner, Kemp W. Gorthey, Attorney at Law, Austin, TX, for v. Respondent Austin Design Group. COMET II CONSTRUCTION, INC., Joe H. Schneider, Laura H. Schneider, and Henderson L. Buford III, Buford & Associates, Austin, TX, Austin Design Group, Respondents. for Respondent Comet II Construction, Inc.

Opinion No. 12–0804. | Argued Oct. 9, 2013. | Decided July 3, 2014. Justice BOYD announced the Court's disposition and delivered a plurality opinion, in which Justice JOHNSON, Synopsis Justice WILLETT, and Justice DEVINE joined. Background: Homeowner brought action against contractor for damages arising from allegedly improper design and Chapter 150 of the Texas Civil Practice and Remedies construction of house foundation. Contractor filed third- Code requires “the plaintiff” in “any action or arbitration party indemnity complaint against architectural designer and proceeding for *559 damages arising out of the provision of licensed professional engineer, and architectural designer professional services by a licensed or registered professional” cross-claimed against contractor and engineer for indemnity. architect, engineer, land surveyor, or landscape engineer The 274th Judicial District Court, Hays County, 2010 WL to file a supporting expert affidavit “with the complaint.” 10092095, William Henry, J., denied engineer's motion to The issue in this case is whether this requirement applies dismiss third-party and cross claims for deficient filing. to a defendant or third-party defendant who files a third- Engineer appealed. The Austin Court of Appeals, 382 S.W.3d party claim or cross-claim against a licensed or registered 554, affirmed. Engineer filed petition for review, which was professional. Concluding that cross-claimants and third-party granted. plaintiffs are not “the plaintiff” in an “action or arbitration proceeding,” we hold that the statute's expert affidavit requirement does not apply to them. [Holding:] On an issue of apparent first impression, the Supreme Court, Boyd, J., held that certificate-of-merit requirement did not apply to third-party plaintiffs and cross- I. claimants.

Background Affirmed. Mahmoud Dawoud purchased a home from Comet II Willett, J., filed concurring opinion in which Devine, J, joined Construction, Inc. About ten years later, Dawoud sued and Lehrmann, J., joined in part. Comet 1 for negligence, negligent misrepresentations, fraud, deceptive trade practices, and breach of contract, alleging Hecht, C.J., filed dissenting opinion in which Green and that Comet defectively designed and constructed the home's Guzman, joined and Brown, J., joined in part. foundation. Comet denied any liability and asserted third- party claims against Austin Design Group, from whom Comet had purchased the foundation plans, and against Gary Wayne Attorneys and Law Firms Jaster, the licensed professional engineer who had prepared the plans. Comet sought contribution and indemnity from the *558 David Kenneth Sergi, David K. Sergi & Associates, third-party defendants, alleging that they “are or may be liable P.C., San Marcos, TX, for Other interested party. to [Comet] for all or part of [Mahmoud's] complaint.” Austin Design Group filed a counterclaim against Comet and a cross- claim against Jaster, seeking contribution and indemnity and

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asserting that, “[t]o the extent there is any defect in the act, error, or omission claimed to exist foundation, whether by design or construction, it is the fault of and the factual basis for each such [Jaster or Comet] and not the fault of Austin Design Group.” claim.

Jaster filed a motion to dismiss Comet's third-party claim and Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Austin Design Group's cross-claim, arguing that they were Tex. Gen. Laws 847, 896–97, amended by Act of May 12, each “the plaintiff” as to those claims, that he was a licensed 2005, 79th Leg., R.S., ch. 189, § 4, 2005 Tex. Gen. Laws professional engineer, and that they had failed to file an expert 348, 348 and Act of May 27, 2005, 79th Leg., R.S., ch. 208, affidavit (which the statute refers to as a “certificate of merit”) § 2, 2005 Tex. Gen. Laws 369, 370 and Act of May 27, as chapter 150 requires. In response, Comet filed an amended 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992 (current version codified at TEX. CIV. PRAC. third-party petition, this time attaching a certificate of merit. 2 Jaster then filed an amended motion to dismiss, arguing that & REM.CODE § 150.002). 4 “The plaintiff's failure to file Comet did not comply with the statute because it did not file the affidavit in accordance with this section shall result in the certificate of merit with the original third-party petition dismissal of the complaint against the defendant” and “[t]his and thus did not file it “with the complaint.” dismissal may be with prejudice.” Id. § 150.002(e). 5

The trial court denied Jaster's motion to dismiss, and Jaster The parties do not dispute that Jaster is a licensed professional 3 filed this interlocutory appeal. With one justice dissenting, engineer and thus a “licensed or registered professional,” 6 or the court of appeals affirmed, concluding that chapter 150 that the claims that Comet and Austin Design Group assert does not require third-party plaintiffs or cross-claimants to against him arise out of the provision of professional services. file a certificate of merit. 382 S.W.3d 554. Jaster filed a Neither Comet nor Austin Design Group filed a certificate of petition for review, which we granted. merit when they originally filed their claims against him. The only issue in this appeal is whether the statute required them to do so.

II. Jaster argues: (1) for purposes of section 150.002, “there is no meaningful distinction” between an original “plaintiff” “The Plaintiff” in an “Action” Under Section 150.002 and a third-party plaintiff or a cross-claimant because they all assert affirmative claims for relief and are subject to [1] Jaster contends that section 150.002 of the Texas Civil the same pleading requirements; (2) third-party claims and Practice and Remedies Code requires dismissal of the claims cross-claims are “actions,” and thus must comply with the that Comet and Austin Design *560 Group asserted against statute's requirements for “any action”; and (3) not applying him in this case. The 2005 version of this section, which the requirement to third-party plaintiffs and cross-claimants governs this action, provided: thwarts “the statute's purpose to protect licensed professionals from unmeritorious or frivolous claims.” In response, Comet In any action or arbitration proceeding and Austin Design Group contend: (1) because the statute for damages arising out of the uses the word “plaintiff” rather than the more inclusive provision of professional services by term “claimant,” the certificate-of-merit requirement *561 a licensed or registered professional, applies only to a party that initiates a lawsuit; (2) requiring the plaintiff shall be required to a defendant who denies the plaintiff's allegations to file file with the complaint an affidavit a certificate of merit that supports the plaintiff's claims of a third-party licensed architect, would be “absurd,” “unfair,” and “unreasonable”; and (3) if registered professional land surveyor, applying the requirement only to “the plaintiff” undermines or licensed professional engineer the statute's purpose, the Legislature should address that competent to testify, holding the same professional license as, and practicing problem, not the courts. 7 After briefly reviewing the courts in the same area of practice as the of appeals' decisions addressing this issue, we consider the defendant, which affidavit shall set language of the statute and its context, and conclude that they forth specifically at least one negligent compel us to agree with Comet and Austin Design Group.

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different from original plaintiffs. 382 S.W.3d at 559–60. A. Judicial Constructions of Section 150.002 The majority observed that “the statute does not specifically Three Texas courts of appeals have addressed section address defendants filing third-party complaints and cross- 150.002's certificate-of-merit requirement in the context of claims” and suggested that “there are multiple options of third-party plaintiffs or cross-claimants. 8 First, in DLB how the certificate-of-merit requirement could be applied Architects, P.C. v. Weaver, the Dallas Court of Appeals to them,” depending on whether the claims are original applied the requirement to a defendant who asserted third- to the defendant or derived from the plaintiff's claims and party claims for contribution and indemnity against out- whether they assert the claims against new parties or parties of-state architects. 305 S.W.3d 407, 411 (Tex.App.-Dallas already in the suit. Id. at 560. After considering the potential 2010, pet. denied). The third-party plaintiff argued that the “unintended consequences of an expansive definition of requirement applies only to architects licensed in Texas, and ‘plaintiff,’ ” id. at 561, the majority noted that the statute the court rejected that argument. Id. at 410–11. But neither uses the word “plaintiff” instead of “claimant” and does party argued that the requirement did not apply to third- so without defining it to include third-party plaintiffs and party plaintiffs, and the court applied the requirement without cross-claimants. Id. at 561–62. Considering the “difficulties addressing that issue. Id. in judicially imposing ... a broader definition of ‘the plaintiff,’ ” the majority decided to “resist the urge to judicially Next, the Fort Worth Court of Appeals became the first to create a solution to the statute's failure to address third-party expressly address the issue in CTL/Thompson Texas, LLC complaints and cross-claims,” and held that the statute “does v. Morrison Homes, 337 S.W.3d 437 (Tex.App.-Fort Worth not require a certificate of merit from a defendant who files a 2011, pet. denied). In that case, a homebuilder sued a land third-party complaint or cross-claim.” Id. at 562. developer and several engineers over a real estate transaction and filed a certificate of merit with the original petition. The dissenting justice in the Austin Court of Appeals Id. at 439. The land developer brought cross-claims against concluded that requiring plaintiffs who sue certain the engineers, but instead of filing a certificate of merit, he professionals to file a certificate of merit but not requiring incorporated the homebuilder's certificate of merit into his defendants who sue such professionals to do so is “an cross-petition by reference. Id. The engineers argued that the absurd result.” Id. at 565 (Henson, J., dissenting). In her statute required the developer to file his own certificate of view, the majority's construction undermines the statute's merit to support the cross-claims. Id. at 440. The court of purpose “to provide a method by which courts can quickly appeals held that the statute does not apply to a defendant dismiss meritless claims” and ignores the reality that, from who merely files cross-claims against another defendant. Id. the licensed or registered professional's perspective, “third- at 445–46. The court rejected the engineer's reliance on DLB party plaintiffs and cross-claimants are certainly ‘plaintiffs' Architects on the ground that it involved a defendant who with regard to the third-party claims and cross-claims[.]” Id. filed third-party claims against a new third-party defendant, at 564–65. rather than cross-claims against a defendant who was already in the case. Id. The court reasoned that there is no need to require a cross-claimant to file a certificate of merit because B. The Language of the Statute “the plaintiff will have already filed [one],” or “if not, the [2] [3] [4] [5] [6] We resolve the issue in this plaintiff's claims are subject to dismissal.” Id. at 445. But case by looking to the language of the statute, which we because the plaintiff will not have already filed a certificate of construe de novo. Nathan v. Whittington, 408 S.W.3d 870, merit addressing the conduct of a new third-party defendant, 872 (Tex.2013). We must enforce the statute “as written” the court reasoned that a third-party plaintiff should be and “refrain from rewriting text that lawmakers chose.” required to do so, even if a cross-claimant is not. Id. at 445– Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 46. (Tex.2009). We limit our analysis to the words of the statute and apply the plain meaning of those words “unless a different Finally, in the case before us today, the Austin Court of meaning is apparent from the context or the plain meaning Appeals held that the statute does not require third-party leads to absurd or nonsensical results.” Molinet v. Kimbrell, plaintiffs or cross-claimants to file a certificate of merit. The 356 S.W.3d 407, 411 (Tex.2011). While we must consider court identified many respects in which third-party plaintiffs the specific statutory language at issue, we must do so while and cross- *562 claimants are both similar to and yet looking to the statute as a whole, rather than as “isolated provisions.” TGS–NOPEC Geophysical Co. v. Combs, 340

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S.W.3d 432, 439 (Tex.2011). We “endeavor to read the claim or cause of action that any party may assert, including statute contextually, giving effect to every word, clause, and an original plaintiff's claims, third-party claims, and cross- sentence.” In re Office of Att'y Gen., 422 S.W.3d 623, 629 claims. This, however, is not the common, ordinary meaning (Tex.2013). We thus begin our analysis with the statute's of “action.” words and then consider the apparent meaning of those words within their context. 9 [9] [10] [11] [12] The common meaning of the term “action” refers to an entire lawsuit or cause or proceeding, not to discrete *564 “claims” or “causes of action” 1. The Words of the Statute asserted within a suit, cause, or proceeding. BLACK'S LAW [7] [8] Section 150.002 requires “the plaintiff” in “any DICTIONARY at 28 (defining “action” as “[a] civil or action or arbitration proceeding” *563 to file a certificate criminal judicial proceeding”). “The term ‘action’ is generally of merit. Chapter 150 does not define the terms “plaintiff” synonymous with ‘suit,’ which is a demand of one's rights in or “action,” so we must give them their common, ordinary court.” Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex.1995); meaning unless the statute clearly indicates a different result. see also In re Marriage of Combs, 958 S.W.2d 848, 850 See Molinet, 356 S.W.3d at 411. That is not to say that (Tex.App.-Amarillo 1997, no pet.) (holding that an “action” is we must (or may only) give undefined words their only “a demand for one's legal right and has been held synonymous meaning, for words can have more than one meaning. The with ‘suit’ ”). A suit, in turn, is “any proceeding in a court dissent asserts that, “[w]hen a word is used sometimes to of justice by which an individual pursues that remedy in a mean one thing and sometimes another, neither is ‘plain,’ court of justice which the law affords him.” H.H. Watson Co. ‘common,’ or ‘ordinary’ to the exclusion of the other.” Post v. Cobb Grain Co., 292 S.W. 174, 176 (Tex.1927) (citing at 578. We disagree. When a statute uses a word that it does Weston v. City Council of Charleston, 27 U.S. 449, 464, not define, our task is to determine and apply the word's 2 Pet. 449, 7 L.Ed. 481 (1829)). Although the word “suit” common, ordinary meaning. The fact that the word may can be “more general in its comprehension than the word sometimes be used to convey a different meaning is the very ‘action,’ ” both terms refer to a judicial proceeding in which reason why we look for its common, ordinary meaning. To parties assert claims for relief. Id. Thus, under the common determine its common, ordinary meaning, we look to a wide definition, “[a]n action is a judicial proceeding, either in variety of sources, including dictionary definitions, treatises law or in equity, to obtain certain relief at the hands of the and commentaries, our own prior constructions of the word court.” Elmo v. James, 282 S.W. 835, 839 (Tex.Civ.App.- in other contexts, the use and definitions of the word in other Fort Worth 1926, writ dism'd w.o.j.). Historically, “action” statutes and ordinances, and the use of the words in our rules referred to a judicial proceeding in a court of law, while “suit” 10 referred to a proceeding in a court of equity. BLACK'S LAW of evidence and procedure. DICTIONARY at 29. We begin by reviewing dictionary definitions of the words “plaintiff” and “action.” See Epps v. Fowler, 351 S.W.3d [13] [14] A “cause of action,” by contrast, “has been 862, 873 (Tex.2011) (Hecht, J., dissenting) (“The place to defined ‘as a fact or facts entitling one to institute and look for the ordinary meaning of words is ... a dictionary.”). maintain an action, which must be alleged and proved in order Dictionaries consistently define a “plaintiff” as a party or to obtain relief.’ ” A.H. Belo Corp. v. Blanton, 133 Tex. 391, person who brings or files a “civil suit” or “legal action.” 129 S.W.2d 619, 621 (1939) (quoting 1 TEX. JUR. p. 61 See, e.g., BLACK'S LAW DICTIONARY 1171 (7th ed.1999) sec. 15). As we recently noted, this is “the generally accepted (defining “plaintiff” as “[t]he party who brings a civil suit meaning” of the term “cause of action.” Loaisiga v. Cerda, in a court of law”); Garner, Bryan, A DICTIONARY OF 379 S.W.3d 248, 255 (Tex.2012) (quoting In re Jorden, 249 MODERN LEGAL USAGE 665 (2nd ed.1995) (defining S.W.3d 416, 421 (Tex.2008)). Thus, a “cause of action” “plaintiff” as “the party who brings suit in a court of law”); and an “action” are not synonymous; rather, the “cause of MERRIAM–WEBSTER'S COLLEGIATE DICTIONARY action” is the right to relief that entitles a person to maintain 888 (10th ed.1993) (defining “plaintiff” as “a person who “an action.” Id. “The right to maintain an action depends brings a legal action”). Thus, both the statute and the upon the existence of a cause of action, which involves the dictionary definitions recognize a direct relationship between combination of a right on the part of the plaintiff and a the words “plaintiff” and “action.” Jaster contends that “any violation of such right by the defendant.” Bell v. Moores, 832 action,” as used in section 150.002, includes each separate

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S.W.2d 749, 752 (Tex.App.-Houston [14th Dist.] 1992, writ to compulsory claims relating to the cross-claim) (emphasis 11 added); TEX.R. CIV. P. 85 (providing that a defendant's denied). original answer “may present a cross-action, which to that [15] [16] A “cause of action” is thus similar to a “claim,” extent will place defendant in the attitude of a plaintiff) in that they both refer to a legal right that a party asserts (emphasis added). But that does not mean that the law treats in the suit that constitutes the action. See Torch Energy them similarly in all respects. We thus conclude that, under Advisors Inc. v. Plains Exploration & Prod. Co., 409 S.W.3d the common, ordinary meaning of the terms, Comet and 46, 56 (Tex.App.-Houston [1st Dist.] 2013, no pet.) (noting Austin Design Group are not “the plaintiffs” in this “action,” that the ordinary meaning of “claim” is “the assertion of because they are not the parties who initiated the suit. an existing right; any right to payment or to an equitable remedy,” and “the aggregate of operative facts giving rise to 2. The Context of the Words a right enforceable by a court”). Thus, a “cause of action may Having identified the common meaning of the terms exist before a suit is instituted.” Magill, 409 S.W.3d at 679. “plaintiff” and “action,” we must also consider the context But for there to be a “suit” or “action,” it is “essential that in which those words appear within section 150.002 and the it rest in a court, with the power to hear it. Without such a forum, it is not ‘a suit,’ since it lacks that which is as necessary statute as a whole. 13 The dissent *566 considers it obvious to make it a suit as the petition itself.” United *565 Prod. that “a third-party plaintiff is a plaintiff.” Post at 576. We Corp. v. Hughes, 137 Tex. 21, 152 S.W.2d 327, 330 (1941) agree that the terms “plaintiff” and “action” may sometimes (quoting Pecos & N.T. Ry. Co. v. Rayzor, 106 Tex. 544, 172 be used more broadly than their common meanings would S.W. 1103, 1104 (1915)). Recognizing these distinctions, this support. 14 To conclude that they are used that way here, Court has used the terms “case,” “cause,” “suit,” “lawsuit,” however, either a statutory definition or the context of the “action,” and “proceeding” interchangeably, while using the language must clearly demonstrate that they are. So we terms “claim,” “cause of action,” and “chose in action” to must consider the entire statute in this case, to determine refer to the facts giving rise to a right that is enforceable in that whether something other than the words' common meaning proceeding. See, e.g., State Farm Fire & Cas. Co. v. Gandy, “is apparent from the context” here. Molinet, 356 S.W.3d at 925 S.W.2d 696, 698–708 (Tex.1996). 411. Doing so, we conclude that the context does not support a different meaning but instead confirms the common meanings Consistent with the common, ordinary usage of these terms, we have identified. the Dallas Court of Appeals has expressly concluded that “the term action in section 10.01 [of the Civil Practice [17] We begin our review of the context by recognizing and Remedies Code] means ‘suit,’ ” not “cause of action.” that the statute requires the plaintiff to file a certificate Bradley v. Etessam, 703 S.W.2d 237, 241 (Tex.App.-Dallas of merit in “any action or arbitration proceeding.” TEX. 1985, writ ref'd n.r.e.) (emphasis in original). Similarly, the CIV. PRAC. & REM.CODE § 150.002(a) (emphasis added). Amarillo Court of Appeals has concluded that a counter-claim By using the terms “action” and “arbitration proceeding” is not an “action” as the Family Code uses that term. Combs, together with the conjunction “or,” the statute treats the 958 S.W.2d at 850. 12 two terms as having a similar meaning. The meaning of individual words “may be ascertained by reference to words Thus, according to the terms' common, ordinary meanings, associated with them in the statute; and ... where two or section 150.002 requires “the plaintiff” to file a certificate more words of analogous meaning are employed together of merit in “any [lawsuit] or arbitration proceeding” against in a statute, they are understood to be used in their cognate a licensed professional, and “the plaintiff” is a party who sense, to express the same relations and give color and initiates the “action” or suit, not any party who asserts claims expression to each other.” Harris Cnty. v. Eaton, 573 S.W.2d or causes of action within the suit. Third-party plaintiffs and 177, 181 (Tex.1978). Giving the term “action” its common cross-claimants do not initiate a lawsuit or legal proceeding. meaning recognizes its similarity and relationship to the term Because they share some similarities with plaintiffs, the “arbitration proceeding,” so that in both terms the statute law treats them similarly in limited respects. See, e.g., refers to a legal proceeding in which a plaintiff asserts a Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800 claim or cause of action. Indeed, if the term “action” referred (Tex.1992) (noting that a defendant who asserts a cross-claim to a claim or cause of action rather than a lawsuit or legal “becomes a plaintiff for res judicata purposes ” with respect proceeding, there would be no reason for the statute to refer

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to an “arbitration proceeding” at all, because parties resolve liability for a year 2000 computer failure in chapter 147, claims and causes of action in both types of legal proceedings. see id. § 147.001(2). And when addressing medical liability See, e.g., TEX. CIV. PRAC. & REM.CODE § 171.002 claims (to impose an expert affidavit requirement similar (addressing “claims” subject to arbitration); In re Labatt Food to chapter 150's certificate-of-merit requirement), the statute Serv. L.P., 279 S.W.3d 640, 645–46 (Tex.2009) (holding that uses a similar but slightly different approach, using the a wrongful death “cause of action” must be resolved through term “claimant” and defining that term to mean any person arbitration, which “merely changes the forum in which the “seeking or who has sought recovery of damages in a health claims are to be resolved”). care liability claim.” Id. § 74.001(a)(2). These provisions demonstrate that when the Legislature wants to use a single Next, we consider that the statute requires the plaintiff to file term that encompasses third-party plaintiffs, cross-claimants, a certificate of merit “in ” an action or arbitration proceeding. and counter-claimants along with plaintiffs, it uses the term TEX. CIV. PRAC. & REM.CODE § 150.002(a) (emphasis “claimant,” and defines that term accordingly. added). As a matter *567 of ordinary language, it would be at least unusual, if not grammatically incorrect, to say that a By contrast, the Code repeatedly uses the word “plaintiff” to plaintiff is “required to file” something “in” a “claim” or “in” refer to a party who initiates the suit, rather than to every party a “cause of action.” Rather, a party asserts a claim or cause of who asserts a claim for relief within a suit. When addressing action “in” a pleading that is filed “in” a lawsuit or “action.” the general rule for venue in chapter 15, for example, the The context of section 150.002(a), which requires the plaintiff statute provides that “all lawsuits shall be brought,” when to file the certificate of merit “with the complaint” and “in other rules do not apply, “in the county in which the plaintiff any action,” thus indicates the common meaning of the term resided at the time of the accrual of the cause of action.” “action” as a lawsuit or legal proceeding. Id. § 15.002(a)(4) (emphases added). Similarly, although (as noted above) the medical liability act generally refers to Similarly, we note that the statute requires the certificate of “claimants,” when addressing discovery procedures it refers merit to “set forth specifically” the defendant's conduct giving instead to “the plaintiff,” who must serve standard discovery rise to liability “for each theory of recovery ” and “the factual answers and responses “within 45 days after the date of basis for each such claim.” TEX. CIV. PRAC. & REM.CODE filing of the original petition.” Id. § 74.352(a) (emphases § 150.002(b) (emphases added). Rather than requiring the added). And when addressing forum non conveniens motions factual support for “the action,” as if that term meant a in chapter 71, the statute uses the word “plaintiff” and defines “claim” or “cause of action,” this language demonstrates the it broadly to mean “a party seeking recovery of damages statute's recognition of the difference between a “claim” and for personal injury or wrongful death,” but the statute then an “action.” Subsection (a) requires the plaintiff to file a expressly provides *568 that “[t]he term does not include certificate of merit “in an action,” and subsection (b) requires a counterclaimant, cross-claimant, or third-party plaintiff.” the certificate to state the factual basis for each legal theory See id. § 71.051(h)(2). These provisions demonstrate that or “claim” asserted in that action. when the Legislature wants to use a term that includes only a party who initiates a lawsuit, thus excluding third-party Turning to the meaning of the term “plaintiff,” we observe plaintiffs, cross-claimants, and counter-claimants, it uses the that, throughout the Civil Practice and Remedies Code, the term “plaintiff,” rather than the term “claimant.” 15 definitions and usage of the term “plaintiff,” as opposed to the term “claimant,” are consistent with its common meaning. Finally, we note that this Court's practice in the Texas When addressing frivolous pleadings and claims in chapter Rules of Civil Procedure is also consistent with the common 9, for example, the statute uses the term “claimant,” rather meanings and the statutory usage of the terms “plaintiff” than the term “plaintiff,” and expressly defines the term and “third-party plaintiff” to refer to distinct types of parties “claimant” to include “a plaintiff, counterclaimant, cross- in a suit. Rule 38, for example, which governs third-party claimant, third-party plaintiff, or intervenor, seeking recovery practice, provides that “a defending party, as a third-party of damages.” TEX. CIV. PRAC. & REM.CODE § 9.001(1). plaintiff,” may bring claims against a non-party “who is or The statute consistently utilizes the same approach when may be liable to him or to the plaintiff.” TEX.R. CIV. P. addressing proportionate responsibility in chapter 33, see id. 38(a) (emphases added). 16 The person against whom the § 33.011(1), damages in chapter 41, see id. § 41.001(1), third-party plaintiff asserts such claims, “hereinafter called liability for stalking in chapter 85, see id. § 85.001(1), and the third-party defendant,” may then assert any defenses

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“the third-party plaintiff has to the plaintiff's claim.” Id. chosen this approach. For one, as the majority in the court (emphases added). The third-party defendant must assert any of appeals noted, third-party plaintiffs and cross-claimants compulsory counterclaims against the third-party plaintiff do not control the time and place of suit, and may not have and any compulsory cross-claims against “other third-party adequate time to obtain the necessary expert analysis by the defendants,” and “[t]he plaintiff may assert any claim against time their third-party claim or cross-claim is due. 382 S.W.3d the third-party defendant arising out of the transaction or at 560. 18 occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.” Id. (emphases added). And In addition, as Comet and Austin Design Group argue and our rules are also consistent with the statute's broader usage the court of appeals' majority also noted, many defendants of the term “claimants.” See TEX.R. CIV. P. 169(a)(1) (like Comet in this case) deny the existence of any design (creating expedited procedure for certain suits in which “all defect, but alternatively assert third-party claims against claimants, other than counter-claimants” seek monetary relief a design professional, seeking contribution and indemnity aggregating $100,000 or less). in the event that the plaintiff prevails. It would be far more “odd” to require such defendants to file an expert's Having identified the common meanings of the terms certificate supporting the merits of the plaintiff's claim, thus “plaintiff” and “action” as referring to a party who initiates requiring the defendants to *570 abandon their denial of the a lawsuit, in contrast to a “claimant” who asserts a merits. Instead of trying to craft a necessarily complicated claim for relief within a lawsuit, and having determined certificate-of-merit requirement that would appropriately that the context of those terms supports those common address defendants who dispute any defect and those who meanings, we conclude that section 150.002's certificate-of- do not, those who seek contribution and indemnity and those merit requirement applies to a party who initiates the lawsuit, who seek affirmative rather than derivative relief, and those and not to defendants or third-party defendants who assert who file only cross-claims against existing defendants and claims for relief within a suit. those who file third-party claims against new defendants, the Legislature may have decided that the better course was to impose a simpler requirement that applies only to a plaintiff C. Absurdity and the Purpose of the Statute who initiates a lawsuit. Jaster argues that construing section 150.002 to allow a party to bring third-party claims or cross-claims without filing a [19] Ultimately, the most that can be said about the alleged certificate of merit when a certificate of merit would be “absurdity” of the statute as we read it is that it provides required if the same party filed the same claim as a separate licensed and registered professionals with early protection suit achieves “an absurd result” and “thwarts” the purpose against most, but not all, meritless claims. Even so, all of the statute. *569 See 382 S.W.3d at 565 (Henson, J., claimants who assert such claims must support them with dissenting). Jaster is correct that courts should not enforce the adequate and sufficient evidence, and summary judgment plain meaning of a statute's text if doing so “leads to absurd or will be appropriate against those who cannot. Though some nonsensical results.” Molinet, 356 S.W.3d at 411. We do not might argue that this approach was not the best policy agree, however, that the application of the common meanings choice, “we read unambiguous statutes as they are written, of the words used in section 150.002 leads to “absurd results,” not as they make the most policy sense.” Health Care and we will not ignore the words' common meanings to Servs., 401 S.W.3d at 629. Even if the result seems to achieve a purpose or object that is ambiguous at best. us to be unreasonable, “reasonableness is not the standard for eschewing plain statutory language.” In re Blair, 408 [18] The “bar for reworking the words our Legislature S.W.3d 843, 859 (Tex.2013) (Boyd, J., concurring). That passed into law is high, and should be. The absurdity safety high standard is absurdity, and we cannot say that this statute valve is reserved for truly exceptional cases, and mere oddity achieves an absurd result. does not equal absurdity.” Combs v. Health Care Serv. Corp., 401 S.W.3d 623, 630 (Tex.2013). 17 While the dissent and Nor can we conclude that the statute's plain meaning is others may think it “odd” for the statute to require claimants inconsistent with the statute's purpose. Ultimately, the dissent to file a certificate of merit when they initiate a lawsuit but concludes that interpreting the statute in accordance with the not when they assert claims as part of an existing lawsuit, common, ordinary meaning of its words “partially impairs there are legitimate reasons why the Legislature may have the statute's purpose.” But with regard to the issue before us,

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all we know of the statute's purpose is that its purpose is to to express its intent in the words of the statute itself.” C require “the plaintiff” in “any action” to file a certificate of & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 328 merit “with the complaint.” Other than that, the statute does (Tex.1994) (Hecht, J., concurring and dissenting). We can not express its purpose. acknowledge the possibility that, although the Legislature used the words “plaintiff” and “action” in chapter 150, it [20] Nevertheless, the dissent asserts that the statute's really meant “claimant” and “cause of action.” Indeed, “[i]t “manifest object” is “to require a prima facie showing is at least theoretically possible that legislators—like judges of liability at the time certain professionals are sued for or anyone else—may make a mistake.” Brown v. De La malpractice,” post at 579, and this Court has observed, albeit Cruz, 156 S.W.3d 560, 566 (Tex.2004). But even if that's in a different context, that its purpose is “to deter meritless the case here, “courts are not empowered to ‘fix’ the mistake claims and bring them quickly to an end.” CTL/Thompson by disregarding direct and clear statutory language that does Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 390 S.W.3d not create an absurdity.” Tex. Lottery Comm'n v. First State 299, 301 (Tex.2013). But deciding exactly which licensed and Bank of DeQueen, 325 S.W.3d 628, 638 (Tex.2010) (citing registered professionals the Legislature intended to protect Brown, 156 S.W.3d at 566). “Courts are not responsible for (those sued as defendants, those brought into a case as third- omissions in legislation, but we are responsible for a true party defendants, or both?) and which meritless claims the and fair interpretation of the law as it is written.” Id. at 637. Legislature intended to bring quickly to an end (those filed by In other words, as today's dissenting justice has explained, a party who initiates a lawsuit, those filed by defendants after “[a] court must be careful not to substitute its own view of they are brought into a lawsuit, or both?) presents a different what should have been intended for what was intended.” Lane question. “[N]o legislation pursues its purposes at all costs. Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 321 Deciding what competing values will or will not be sacrificed (Tex.2000) (Hecht, J., concurring). to the achievement of a particular objective is the very essence of legislative choice.” Rodriguez v. United States, 480 U.S. We conclude that construing the terms “the plaintiff” and 522, 525–26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). We “any action” in section 150.002 according to their common must look to the statute's text to determine the policy choices meanings does not lead to absurd results or undermine the that the Legislature made when deciding how to achieve the statute's stated purpose. “manifest object” of section 150.002. “[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the III. law.” Id. at 526, 107 S.Ct. 1391. We “are bound, not only by the ultimate purposes [the Legislature] has selected, but by the means it has deemed appropriate, and prescribed, for the Conclusion pursuit of those purposes.” *571 MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 n. 4, 114 S.Ct. 2223, We hold that the certificate-of-merit requirement in section 150.002 of the Civil Practice and Remedies Code applies to 129 L.Ed.2d 182 (1994). The language of section 150.002 “the plaintiff” who initiates an action for damages arising indicates that its purpose is to deter and end meritless claims out of the provision of professional services by a licensed or that “the plaintiff” asserts “with the complaint” that initiates registered professional, and does not apply to a defendant or an “action.” The Legislature has to balance many interests, third-party defendant who asserts such claims. We therefore and for the reasons we have explained, it may have decided affirm the court of appeals' judgment upholding the trial that requirement strikes the proper balance. We must rely on court's denial of Jaster's motion to dismiss. the words of the statute, rather than rewrite those words to achieve an unstated purpose.

[21] [22] [23] Finally, we address the dissent's complaint Justice WILLETT filed a concurring opinion, in which Justice that our analysis of the statute demands too much “precision” LEHRMANN joined in part, and in which Justice DEVINE from the Legislature, at least if the goal of our analysis is to joined. “giv[e] effect to the Legislature's intent in the enactment.” Post at 579. We disagree and instead conclude that “[w]e must assume that the Legislature has done its very best

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Chief Justice HECHT filed a dissenting opinion, in which Justice GREEN and Justice GUZMAN joined, and in which A. “Plaintiff” Refers Only to the Original Plaintiff. Justice BROWN joined in all but Part II. If action refers to a civil suit as a whole and not to individual claims, the meaning of “plaintiff” is necessarily Justice WILLETT, joined in part by Justice LEHRMANN, circumscribed. The statute says “the plaintiff.” Use of “the” and joined by Justice DEVINE, concurring. indicates that the language is trying to pinpoint one particular I join the plurality opinion 1 but write separately to party in the action or arbitration proceeding. Since “action” underscore the centrality of *572 semantic context in must be referring to the suit as a whole, this singular emphasis statutory interpretation and the perils of resting on a statute's on a particular plaintiff seems to rest most naturally with supposed purpose. the plaintiff who initiated the suit. Likewise, the required affidavit is to be filed with “the complaint.” Again, this signals a focus on a particular party at a particular moment in the lawsuit. “The complaint” most naturally refers to the I. Context Indicates that Third–Party Plaintiffs initial pleading that puts the “action” or suit into motion. Of Need Not Comply with Section 150.002. course, other plaintiffs may come along through intervention or joinder. But when “the” shows up before both “plaintiff” I agree with the dissent that some words, taken in isolation, and “complaint,” it indicates the targeting of someone and do not yield a platonic form free of ambiguity. However, something specific—the plaintiff and petition that put the suit context sheds light on meaning, and I believe the language of in motion. This makes sense in light of the role of motions this statute, viewed in context, excludes third-party plaintiffs to dismiss—they are designed as sentinels that guard the from the expert-affidavit requirement. Thus, the plurality gate and thus most naturally target the party who first comes opinion's analysis of the context does not just support its knocking. Moreover, the manifest object of the provision is analysis of isolated words—it forms an essential foundation fulfilled after the initial plaintiff meets the requirement. There for understanding those words. is no *573 obvious need to require each additional plaintiff who sues the defendant to file a separate affidavit in order Judges must navigate a narrow course “between a sterile for this threshold protection to be provided because the initial literalism which loses sight of the forest for the trees, and affidavit has already provided the desired filtering effect. a proper scruple against imputing meanings for which the words give no warrant.” 2 For that reason, “[l]anguage cannot be interpreted apart from context.” 3 Meaning is bound to B. A Claim Seeking Contribution and and bound by context. Words derive substance from the Indemnity Is Not an Action “For Damages.” ecosystem of language in which we find them, and we must “consider the entire text, in view of its structure and of Additionally, section 150.002 does not apply to third-party the physical and logical relation of its many parts.” 4 The plaintiffs seeking indemnity and contribution because the meaning of language, plain or not, must be drawn from the affidavit requirement is limited to actions “for damages.” surrounding context, particularly everyday words and phrases I would read this as damages sought by “the plaintiff” that are inordinately context-sensitive. Such a contextual who seeks a direct right to recover against the design reading here demonstrates that “the plaintiff” who files “the professional. Here, Comet does not seek damages—it seeks complaint” in an “action ... for damages” refers to the original only contribution and indemnity. When a defendant files plaintiff in the suit, and not a third-party plaintiff. a third-party action against a third-party defendant seeking contribution and indemnity, the defendant does not increase I agree with the plurality opinion's analysis of the word the possible scope of damages that the plaintiff will ultimately “action” in light of the statute's context and briefly add several recover. The only changing dynamic is the proportionate other contextual considerations that support the plurality share of the damages to be paid. Thus, a claim for contribution opinion's conclusion that the statute does not require third- and indemnity is not an action “for damages” because it does party plaintiffs to file expert affidavits. not provide an independent basis for any new damages. It only adds another variable in determining how the damages already sought by the original plaintiff will be allocated

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among co-liable parties. Thus, actions for contribution and result does not rise to the kind of absurdity that would justify indemnity are not actions “for damages.” deviation from a fair reading of the text in favor of a putative purpose. When the language of section 150.002 is viewed as a whole, the meaning of “plaintiff” becomes clear. “Action” refers to Liberal use of the absurdity doctrine too often devolves civil proceedings, or the lawsuit as a whole. “The plaintiff” into purposive interpretation of statutes. And reliance therefore is the original plaintiff. Moreover, a third-party on legislative purpose always tempts but rarely tempers. plaintiff seeking only contribution and indemnity does not That temptation reaches its zenith when the upshot of a have a claim “for damages.” Thus, a third-party plaintiff need straightforward reading seems illogical or unjust. But a fair not comply with the expert-affidavit requirement. reading may well require an unfair result. When interpreting the Legislature's words, we cannot revise them under the guise of interpreting them. “Making law work is a proper goal for judges only at the retail level; substance is in the main for II. Analysis of “Action” and “Plaintiff” in Isolation Does Not Free Them of Ambiguity. the political branches.” 6

In analyzing “action” and “plaintiff,” the plurality opinion Plus, careful textual commitment can encourage careful relies on dictionaries, other statutory provisions, and caselaw. drafting. When legislatures come to see courts as editors These are helpful tools but often insufficient. “[T]he choice rather than adjudicators, busy legislators may leave the among meanings must have a footing more solid than a judiciary to tighten the screws on loose language down dictionary—which is a museum of words, an historical the road. Vague legislation is sometimes inadvertent and catalog rather than a means to decode the work of sometimes intentional, but it is always a recipe for increased legislatures.” 5 Reliance on caselaw definitions faces a litigation and judicial guesswork. By sticking to our limited similar problem. In both circumstances, the words are not role, judges do more to improve the quality of the law than considered in the context of their use in the statute before us. they ever could by decamping from text to hunt the snark of With caselaw, the problem is exacerbated because entirely unvoiced legislative purpose. different circumstances may have animated our former interpretation of a particular word. Evidence of meaning from In order to carefully police our limited role, the bar for other statutes is also useful, but this can be tricky, as words application of the absurdity doctrine must remain high. in statutes may take on unique or varying shades of meaning Peculiarity or unfairness is not sufficient to trigger the depending on the context and the purpose for which they are absurdity doctrine. As we held recently—and unanimously used. Because these tools for analyzing isolated words have —statutory language “can often work peculiar outcomes, limitations, context becomes essential to clarity. including over- or under-inclusiveness.... [but] mere oddity does not equal absurdity.... The absurdity backdrop requires more than a curious loophole.” 7 In general, “if the legal deck is stacked via technical statutory requirements, the III. Jaster's Purposive Approach Does Not Dethrone the Primacy of Text. Legislature should reshuffle the equities, not us.” 8 Here, the failure of the statute to protect design professionals Jaster and the court of appeals' dissent rely more heavily than from third-party plaintiff claims while furnishing protection CHIEF JUSTICE HECHT on the statute's alleged purpose. from original plaintiffs may be “quirky,” but that is “quite Both advocate use of the absurdity doctrine to effectuate different from proving it was quite impossible that any the statute's purpose. That purpose, according to Jaster, rational Legislature could have intended it.” 9 is to shelter design professionals from the *574 waste of defending non-meritorious claims. He complains that Indeed, a rational Legislature could have wanted to exclude Comet's reading of the statute would frustrate this purpose third-party plaintiffs because requiring their compliance with because the design professional directly sued by the original section 150.002 creates a “quirky” result of its own. Section plaintiff is protected, while the design professional who is 150.002 requires submission of an expert affidavit along dragged into the lawsuit by a defendant eager to pass along with the complaint that sets forth “specifically at least one or share liability is not. Parties similarly situated are treated negligent act, error, or omission claimed to exist and the differently, which may seem illogical and unfair. But this

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014) 57 Tex. Sup. Ct. J. 1005

factual basis for each such claim.” It is not clear whether this a third-party plaintiff and an intervenor can be a plaintiff, affidavit must lay out some factual basis for each essential so long as they are not also defendants. Not to complicate element of a negligence claim, but it must at least lay out matters, the author of the Court's opinion in Ford agrees that the factual basis for the “negligent act, error, or omission.” this case is correctly decided, but the author of the Court's A persuasive affidavit regarding a negligent act will often opinion in this case dissents in Ford. And another dissenter require evidence of the alleged defect resulting from the in Ford joins the opinion in this case—but that begins to design professional's supposed *575 negligence. However, complicate matters. this kind of evidence will often also constitute evidence helpful to establish the original plaintiff's claim against the I suspect that these cases will leave many readers scratching defendant home-builder before the plaintiff has presented their heads. Though the Court is trying to adhere to the his case-in-chief, moved for summary judgment, or even statutory text, whatever the result, it opens itself to the engaged in full discovery. In other words, application of criticism that its analysis is picky and detached from reality. section 150.002 to a third-party plaintiff will often place Intending to be careful, the Court risks being viewed as the defendant/third-party plaintiff in the unenviable position conducting a contest among the Pharisees in the Temple of of either breaking ground for his own burial or foregoing Textualism over who is the most devout. his right to indemnity or contribution. While this may not amount to an absurd result, it certainly awakens our sense Faithfulness to the principle that the words of a statute are of unfairness in the same manner as the supposed absurdity the law may necessitate embracing a result that is peculiar or of not holding third-party plaintiffs to the same heightened worse, yet unavoidable. But unnecessarily embracing such a pleading requirement as original plaintiffs. It is not our place result undermines the principle by suggesting that more and to choose between these anomalous results. less reasonable interpretations are to be treated equally. The Judiciary's sole objective in interpreting statutes is to give Careful textual analysis here points to a clear result, and the effect to the Legislature's intent expressed in its words. Out of plurality opinion rightly declines to engage in the purposive respect for the Legislative Branch, we must read their words analysis urged by Jaster. Here, context clearly indicates that the way *576 they have written them—to make sense. I am the text does not require third-party plaintiffs to file an expert not confident we have achieved that result in this case and affidavit with the third-party petition. therefore respectfully dissent.

Chief Justice HECHT, joined by Justice GREEN and Justice I GUZMAN, and in all but Part II by Justice BROWN, dissenting. By statute, “the plaintiff” in “any action or arbitration proceeding” for malpractice by certain professionals must In this case and another decided today, In re Ford, 1 the Court ordinarily file “with the complaint” an affidavit supporting has written more on the subject of who is a “plaintiff” than I imagine all the other courts in the English-speaking world each theory of recovery. 3 All we have to decide is whether have ever written, all together. The distinction is a dubious this requirement applies when a professional is sued by a one. third-party plaintiff—a defendant suing a non-party. 4 One might think this would be pretty easy: a third-party plaintiff The cases are quite different, of course—the issue in this is, in name itself, a plaintiff, and a suit is an action, so yes, case is who the plaintiff is, while in Ford the issue is who the requirement applies. But the reader will by now have seen a plaintiff is, and although both cases involve statutes in from the plurality and concurring opinions that the issue is far the Texas Civil Practice and Remedies Code, 2 the statutes more complicated than that. are in separate volumes. So it is hardly surprising that the cases reach different, and arguably contradictory, outcomes. The answer, according to the plurality opinion, depends on the Without trying to put too fine a point on it, the Court holds in “plain”, “common”, and “ordinary” meaning of the statute's this case that a third-party plaintiff cannot be the plaintiff in operative words, “the plaintiff” and “any action”. 5 The any action, and is of two minds about whether an intervenor plurality opinion then embarks on what is the most exhaustive can be the plaintiff, while in Ford the Court holds that both treatment of that subject in the law of *577 Texas, if not

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all of American jurisprudence. It is masterful. I would not “plaintiffs” who do initiate suit, they become “plaintiffs”, challenge a word, and there is certainly nothing left to add. though maybe not under the statute in this case, a question we All I can do of any use is to summarize the plurality opinion's need not decide. 17 analysis and then offer a few reflections. Conclusion: Third-party plaintiffs are not plaintiffs.

According to the plurality opinion: *578 To the plurality opinion's splendid analysis and The word “action” is sometimes used “more broadly” to conclusion, I respectfully offer five reservations. refer to a “cause of action”, but an “action” is really an entire lawsuit, and a “cause of action” is only a “right to First: The plurality opinion has proven beyond any doubt that sometimes third-party plaintiffs are plaintiffs and sometimes relief”, or at least a “claim” to such a right. 6 A person not, sometimes third-party actions are actions and sometimes with a “cause of action” can bring an “action”, which is not, and while sometimes the variations can be explained, “generally synonymous with ‘suit’ ”, except that “the word sometimes they cannot be. Any remaining doubt is quickly ‘suit’ can be ‘more general in its comprehension than the word dispelled by searching caselaw and statutes for the terms “action” ’ ”. 7 Historically, an “action” was a legal proceeding “third-party plaintiff”, “third-party action”, and “third-party and a “suit” was an equitable one. 8 The important thing is cause of action”, and noting the various, inconsistent ways in that both an “action” and a “suit” are “proceedings”, though which those terms are used. When a word is used sometimes actually, all three words, while different, have been used to mean one thing and sometimes another, neither is “plain”, interchangeably, along with “case”, “lawsuit”, and “cause”. 9 “common”, or “ordinary” to the exclusion of the other. An “action” is a “cause”, but it is not a “cause of action”. That Ironically, the plurality opinion's labors to prescribe definite is, except for one time in Rule 85 of the Texas Rules of Civil meanings for “plaintiff” and “action” only demonstrate that for it, the words “plain”, “common”, and “ordinary” have no Procedure. 10 real meaning at all.

Furthermore: Second: The underlying assumption of the plurality opinion's approach is that when it finally arrives at the real meaning Dictionaries define “plaintiff” as the person who initiates of the inescapably imprecise words, “plaintiff” and “action”, an “action” or “suit”. 11 Third-party plaintiffs and cross- trudging through dictionaries, cases, and statutes, parsing claimants “share some similarities” with “plaintiffs”, and the and explaining, and finally discarding what it considers law treats them similarly “in limited respects”. For example, to be misuses of the words, the end result will be what third-party plaintiffs and cross-claimants initiate proceedings the Legislature intended without going through the same against third-party defendants and cross-defendants, and process. When lawyers and judges have put words to various, inconsistent uses over time, legislators simply cannot be they are plaintiffs for res judicata purposes. 12 But third- presumed, alone of all creatures, to be precise—or closer to party plaintiffs and cross-claimants are not “plaintiffs” in an the point, to have been more precise in one statute than they “action” because they initiated only part of the suit, not the were in others. And in Chapter 150, they, in fact, were not whole suit. 13 There must be “a direct relationship between precise at all. the words ‘plaintiff’ and ‘action.’ ” 14 All “plaintiffs” are “claimants”, but not all “claimants” are “plaintiffs”, and For example, a “complaint”, with which a certificate must “[t]hroughout the Civil Practices and Remedies Code,” that be filed, is not part of Texas civil procedure. Obviously, a is the way those words are defined and used. When the “petition” is intended. Would the Court hold that Chapter Legislature says “plaintiff”, it means the person initiating 150 is dead letter because it applies only to the filing of a suit, and when it says “claimant”, it means “plaintiffs” and “complaint”, which is certainly not a “petition”? Heavens, no, others who assert “causes of action”. 15 Actually, that is the plurality opinion says. That would be absurd. 18 not quite right. Chapter 74 uses the terms “plaintiff” and “claimant” interchangeably in the very same sentence. 16 For another example, a certificate must be filed by “the Also, some “plaintiffs” do not initiate suit but intervene or plaintiff” in an “arbitration proceeding”, but in an arbitration are involuntarily joined, but by being included among the proceeding, the person seeking relief is uniformly referred

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014) 57 Tex. Sup. Ct. J. 1005

to as a “claimant”, not as a “plaintiff”. 19 Does this mean It may be that “plaintiff” and “action” should always have that certificates of merit need never be filed in arbitration only the meanings the Court ascribes to them. But that has proceedings? I suppose the Court would think that absurd, never been true—hence, the need for lengthy analysis—and too. to demand such exactitude in this case impairs the statute's purpose. Yet if there is any justification for interpreting “action” strictly, “plaintiff” somewhat strictly, and “complaint” The manifest object of Chapter 150 is to require a prima loosely, all three words in the same sentence, it is not facie showing of liability at the time certain professionals are apparent. More importantly, the process of interpreting sued for malpractice. Remarkably, and tellingly, the Court statutes cannot legitimately ascribe a precision to them that states that it simply cannot tell what the manifest object the process *579 of writing them gave no indication, and of Chapter 150 is because it cannot be sure exactly which probably was incapable, of producing. At least, it cannot do so professionals are to be protected or precisely from what with the professed purpose of giving effect to the Legislature's claims. An obvious answer, especially when the Legislature intent in the enactment. Judicial interpretation should not has not said otherwise, is: all. The concurring opinion admits imagine a Legislature that does not exist. that imposing the requirement only on a plaintiff suing a defendant and not on a third-party plaintiff suing a third-party Third: As the plurality opinion candidly acknowledges, “the defendant “may be ‘quirky’ ”, 23 but the concurring opinion terms ‘plaintiff’ and ‘action’ may sometimes be used more and the plurality opinion conceive two reasons why this was broadly than their common meanings would support.” 20 exactly what the Legislature intended. When the Legislature has used the same words to mean different things from time to time, at least once in the same One is that a third-party plaintiff may be caught off-guard by sentence, how is it possible to determine from the words a lawsuit and not have enough time to procure the required alone what it meant this time? In Chapter 74 of the Civil affidavit before the third-party petition must be filed. 24 But Practice and Remedies Code, the Legislature uses “plaintiff” the third-party plaintiff will *580 never have less than to mean “claimant”, which includes third-party plaintiffs. 21 51 days, 25 and that time may be extended by motion or How can the Court ascertain, from nothing more than the agreement. It is possible that the Legislature could have words themselves, that the Legislature did not intend the same considered this time pressure sufficient reason to except an meaning in Chapter 150? entire group of claims from a requirement intended to protect all professionals, but it is just as likely that the Legislature Fourth: The plurality opinion demonstrates that judicial thought the opposite and did not create the loophole the Court interpretation of statutes cannot focus on text alone; it must finds today. examine the text in context. The plurality and concurring opinions profess agreement that context is important, but by Another motive the Court thinks the Legislature might context, both mean only surrounding words, not the reality have had for excluding third-party plaintiffs from the they are intended to affect. The concurring opinion warns statutory requirement is that to include them is “necessarily against “a sterile literalism which loses sight of the forest for complicated” because third-party plaintiffs and cross- the trees”, but staring at little clumps of trees—losing sight of claimants may be seeking “affirmative rather than derivative the forest for the groves—is no more fertile an approach. relief” or only “contribution and indemnity”. 26 But the Court simply presumes that it is “appropriate[ ]” to tailor The context the Court ignores is the world in which the the affidavit requirement to each such situation. It is far words it has so carefully examined operate. It has long simpler, and no less appropriate, to treat all claimants the been the Court's rule that “a statute is to be construed same: a charge of malpractice cannot be made against with reference to its manifest object, and if the language is these professionals without something more than mere susceptible of two constructions, one of which will carry out allegations to back it up. And the cross-claimant seeking only and the other defeat such manifest object, it should receive contribution and indemnity can use a certificate previously the former construction.” 22 But the rule is disregarded in filed by a plaintiff. a Rabbinic fixation with individual words. The plurality opinion's impressive analysis may be correct in the abstract.

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Fifth: Despite every effort, the Court itself cannot plough action involving all the parties and claims can be brought in a straight furrow. Third-party plaintiffs are not covered by Texas without being dismissed under Section 71.051. So the the statute, even if the third-party action is severed, so that question becomes: are the procedural differences in the way the third-party plaintiff becomes the plaintiff in the severed the case was brought and the way it could have been brought action and its initiator, just as if the third-party action had significant to the ostensible purpose of Section 71.051? The been filed separately to begin with. And when parties joined answer is plainly no. Without answering that question, the as plaintiffs after the action has been initiated are the first to dissents would dismiss the intervenors' claims because, in assert a malpractice claim against a professional, the Court this action, they are more aligned with the defendant's. In the cannot say for sure whether they are plaintiffs or not. It feebly dissents' view, the intervenors simply made an error that cost hints that they may be plaintiffs by association, falling prey to them their case in Texas. the smudging of meanings it is trying to rectify, then declines to answer its own question lest its explanation be advisory. 27 In my view, while it is possible to read the statute as the dissents do, it is at least as reasonable to read it as the Court does, and it is impossible to think the Legislature intended, as between the two, the interpretation that leads to different II results for essentially identical parties. And we should not think, as the dissents do, that the Legislature, in trying to And the plough hits a rock in Ford. That case involves Section preserve a Texas forum for Texas residents, craftily laid a trap 71.051 regarding forum non conveniens. The statute requires so that by suing one way rather than another, they would lose dismissal of actions falling under that doctrine, as determined their rights altogether. by applying several factors, but excepts cases in which “the plaintiff is a legal resident of this state.” 28 The statute also In both this case and Ford, we must interpret statutory defines “plaintiff” as “a party seeking recovery of damages language that, in the circumstances presented, is imprecise. for personal injury or wrongful death” but expressly excludes In both cases, the statutory purpose is evident, not something third-party plaintiffs. 29 that we must supply. “The evident purpose of what a text seeks to achieve is an essential element of context that gives The problem in the case is this. A nonresident plaintiff meaning to words.” 30 When that purpose can be determined sued his deceased brother's estate for injuries suffered in from the text, as it can easily be in these cases, “[a] textually a vehicular accident in Mexico in which the brother, who permissible interpretation that furthers rather than obstructs owned and maintained the vehicle, was killed. The estate, in [a statute's] purpose should be favored.” 31 turn, sued Ford, and then so did the plaintiff. At that point, the case could have been dismissed under Section 71.051. But the decedent's wrongful death beneficiaries, some of whom are residents, intervened, also suing Ford, but not, of course, III suing the defendant estate. If the intervenors are plaintiffs, the case cannot be dismissed. But are they third-party plaintiffs, Finally, I add a brief word in response to the argument that statutorily excluded from “plaintiffs”? No, the Court holds, a stricter judicial adherence to text will produce more careful because in context, the third-party plaintiffs referred to in the statutory drafting. For one thing, I doubt whether that is true, *581 statute must also be defendants, and the intervenors are or even possible. This Court pores over every word, every more aligned with the plaintiff than with the defendant. comma, in its opinions, trying to be as exact as possible, and still disagreements regularly arise—often even among us— I join in the Court's opinion in Ford, though the Court's about what was really said. The legislative process does not detailed analysis of the text and the alignment of the parties usually allow for the same care to be taken in the choice is similar to the Court's analysis in the present case, which of language. There are many authors, the text is subject as I have said, I find misguided. Unquestionably, however, to amendments of all sorts, friendly and unfriendly, and in had the intervenors filed their own suit, it could not have the end, the product is often one of compromise, which is been dismissed and could have been consolidated with the essential to the legislative process. original plaintiff's suit, or if that suit had been dismissed, the plaintiff could have intervened in the other suit. Thus, the More importantly, the Judiciary is not, in my view, entitled to insist that the Legislature write for our approval. Our

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wryly at the futile and ridiculous cry objective in interpreting statutes is to find the Legislature's for aid, then saw with a start that intent in the words it enacted, not what a group of the words were ambiguous, realized grammarians and researchers might have intended by those with alarm that they were not perhaps, words. This does not justify substituting our meaning for the intended as a call for police but as a Legislature's, or what we might consider desirable policies for heroic warning from the grave by a those it has chosen. But proper statutory *582 interpretation doomed friend to everyone who was does require us to give careful consideration to the reality in not a policeman with a club and gun which and for which the Legislature acted. For legislators, and a mob of other policemen with each statute has a purpose, which is the context in which clubs and guns to back him up. “Help! the words speak. When we can find that purpose without Police!” the man had cried, and he inventing it, and pursue it without adding or detracting from it, it should inform our interpretation. could have been shouting of danger. 32

****** The starting point of textual analysis must be the words chosen, but it cannot be the ending point, lest the exercise be Since the Tower of Babel, expression is inexact. Joseph Heller criticized as verbomania. In my view, the Court in this case has written powerfully of the importance of context: rejects a simple, reasonable—and yes, plain—interpretation of a statute in favor of a demanding but inconsistent word “Help!” he shrieked shrilly in a voice analysis that partially impairs the statute's purpose. The Court strangling in its own emotion, as the narrowly avoids doing the same thing in Ford. We would not policemen carried him to the open interpret our own work this way, and it is no more appropriate doors in the rear of the ambulance because the work is that of another Branch of Government. I and threw him inside. “Police! Help! respectfully dissent. Police!” The doors were shut and bolted, and the ambulance raced away. There was a humorless irony in the All Citations ludicrous panic of the man screaming for help to the police while policemen 438 S.W.3d 556, 57 Tex. Sup. Ct. J. 1005 were all around him. Yossarian smiled

Footnotes 1 Dawoud also sued Comet's principals, Joe and Laura Schneider. We refer to all three defendants jointly as “Comet.” 2 Comet later filed a second amended third-party petition, attaching the same certificate of merit. 3 The statute expressly authorizes an interlocutory appeal from an order granting or denying a motion to dismiss. See TEX. CIV. PRAC. & REM.CODE § 150.002(f). 4 Our references to section 150.002 are to the 2005 version of the statute, which the parties agree governs this case. The Legislature has since amended section 150.002, but the current version still imposes the certificate-of-merit requirement on “the plaintiff” in “any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional,” including a licensed professional engineer. See TEX. CIV. PRAC. & REM.CODE § 150.002(a). Thus, our construction of the 2005 version also applies to the current version of the statute. 5 This provision was found in subsection (d) in the 2005 version of the statute and was substantively the same for purposes of this case. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847, 896–97 (amended 2005, 2009) (current version codified at TEX. CIV. PRAC. & REM.CODE § 150.002(e)). 6 Chapter 150 defines “licensed or registered professional” to include licensed architects, licensed professional engineers, registered professional land surveyors, registered landscape architects, and firms in which such licensed or registered professionals practice. See TEX. CIV. PRAC. & REM.CODE § 150.001(1–a). 7 Comet and Austin Design Group argue additional grounds for affirming the appellate court's judgment, but we need not reach them in light of our construction of the statute.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014) 57 Tex. Sup. Ct. J. 1005

8 We recently addressed section 150.002 in CTL/Thompson Tex., L.L.C. v. Starwood Homeowners Ass'n, but that appeal did not involve the issue of whether the certificate-of-merit requirement applies to parties other than a “plaintiff.” 390 S.W.3d 299 (Tex.2013). 9 By contrast, the dissent begins with its own conclusion, suggesting that the resolution of this case should “be pretty easy” because, after all, it says (without citation), “a third-party plaintiff is, in name itself, a plaintiff, and a suit is an action.” Post at 576 (Hecht, C.J., dissenting) (emphasis in original). We cannot be quite so cavalier when fulfilling our duty to construe Texas statutes, and we cannot begin our analysis with our own unsupported conclusions on the very issue before us. We begin, instead, with the language of the statute. 10 Examples of our reliance on these various sources to determine a word's common, ordinary meaning are too numerous to cite, but for examples from opinions we issued just within the past two years, see Zanchi v. Lane, 408 S.W.3d 373, 378 (Tex.2013) (relying on dictionary definitions, our prior decisions, the rules of procedure, and statutory definitions for the common meaning of “party”); Rachal v. Reitz, 403 S.W.3d 840, 845 (Tex.2013) (relying on dictionary definitions and treatises for the common meaning of “agreement”); Morton v. Nguyen, 412 S.W.3d 506, 510–12 (Tex.2013) (relying on our prior decisions, dictionary definitions, and the Restatement for the common meanings of “rescission” and “refund”); City of Hous. v. Bates, 406 S.W.3d 539, 545–47 (Tex.2013) (relying on dictionary definitions and a city ordinance for the common meanings of “leave” and “salary”); State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 181 (Tex.2013) (per curiam) (relying on dictionary definition of “novelty”); Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 n. 16 (Tex.2012) (relying on dictionary definitions and our prior opinions for the common meaning of “requisite”); Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 382–83 (Tex.2012) (relying on our prior opinions, other statutes, and treatises for the common meaning of “property”); Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex.2012) (relying on dictionary definition for common meanings of “distribution” and “transmission”). 11 See also Magill v. Watson, 409 S.W.3d 673, 679 (Tex.App.-Houston [1st Dist.] 2013, no pet.) (a “cause of action” consists of “those facts entitling one to institute and maintain an action at law or in equity”); City of Texarkana v. Cities of New Boston, 141 S.W.3d 778, 788 (Tex.App.-Texarkana 2004, no pet.) (stating that a “pleading” is the vehicle for “alleging a cause of action” and thus the “means by which one party institutes a lawsuit.”); Elmo v. James, 282 S.W. 835, 839 (Tex.Civ.App.-Fort Worth 1926, writ dism'd w.o.j.) (“The facts necessary to be alleged and proved in order to obtain the relief sought, and on account of which the action is instituted, logically constitute the cause of action.”). 12 Generally, our rules of civil procedure also recognize the distinction between an “action,” “suit,” or “cause” and a “cause of action” or “claim.” Compare, e.g., TEX.R. CIV. P. 86 (referring to transfer of venue “from the county where the action is pending”) (emphasis added) and TEX.R. CIV. P. 89 (providing that the “cause” shall be transferred and “such suit” filed in the new county, but if “the cause” is “severable as to parties defendant” it must be “ordered transferred as to one or more defendants but not as to all”) with TEX.R. CIV. P. 91a.7 (providing for dismissal of a baseless “cause of action” and award of attorney's fees incurred “with respect to the challenged cause of action,” except in “an action” by or against a governmental entity or public official). 13 We agree with the concurring opinion's observation that, because our “tools for analyzing isolated words have limitations, context becomes essential to clarity.” Post at 573 (Willett, J., concurring). But as the concurring and dissenting justices have previously acknowledged, both the words and the context matter. City of Rockwall v. Hughes, 246 S.W.3d 621, 632 (Tex.2008) (“When Searching for Statutory Meaning, Words Matter–And So Does Context.”) (Willett, J., joined by Hecht, J., dissenting). If we have engaged in an “exhaustive” (if not “masterful,” “splendid,” and “impressive”) analysis, post at 576–77 (Hecht, C.J., dissenting), of the common, ordinary meanings of “plaintiff” and “action,” we have done so only and precisely because “words matter.” Far from being “detached from reality,” post at 575 (Hecht, C.J., dissenting), when it comes to fulfilling our role of interpreting statutes, the language of the law is our reality, at least unless we decide to start writing the law ourselves. Because the statute does not define the determinative words, we determine and apply their plain, ordinary, common meaning “unless a different meaning is apparent from the context.” Molinet, 356 S.W.3d at 411 (emphasis added). Having determined the words' common, ordinary meanings, we now consider whether the context compels a different meaning. 14 We have identified one instance within the Civil Practice and Remedies Code, for example, where it appears that the term “plaintiff” is used interchangeably with the broader term “claimant.” See TEX. CIV. PRAC. & REM.CODE § 74.351(c) (“If the claimant does not receive notice of the court's ruling granting the extension until after the 120–day deadline has passed, then the 30–day extension shall run from the date the plaintiff first received the notice.”). Similarly, we have identified one instance within our Rules of Civil Procedure where it appears that the term “action” is used as a short-hand reference to refer to a cross-claim. See TEX.R. CIV. P. 85 (providing that a defendant's original answer may “present a cross-action”).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014) 57 Tex. Sup. Ct. J. 1005

15 We note that, as the Civil Practice and Remedies Code recognizes, there may be more than one plaintiff in a single lawsuit, “whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise.” TEX. CIV. PRAC. & REM.CODE § 15.003(a). The recognition that those added to the suit by joinder or intervention may become “plaintiffs” is also consistent with the common meaning of the term, as such joinder or intervention simply places them among those who initiated the suit. See, e.g., TEX.R. CIV. P. 40 (explaining circumstances in which “[a]ll persons may join in one action as plaintiffs ”) (emphasis added). Because this case does not present the issue of whether section 150.002 requires each individual plaintiff in a multi-plaintiff suit and those added as plaintiffs by joinder or intervention to file separate certificates of merit, we may not address that issue here without rendering an advisory opinion. 16 Thus, as the dissent agrees, a third-party plaintiff, under Rule 38, is not a “plaintiff” but “a defendant suing a non-party.” Post at 576 (emphasis added). 17 One example of an absurd result may be found in section 150.002(a)'s use of the word “complaint.” As the dissent notes, while parties in federal courts file “complaints,” see, e.g., FED.R.CIV.P. 3 (“A civil action is commenced by filing a complaint with the court.”), parties in Texas courts file “petitions,” see, e.g., TEX.R. CIV. P. 22 (“A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.”), so a “ ‘complaint’ ... is not part of Texas civil procedure.” Post at 578. The dissent wonders why we do not “hold that Chapter 150 is dead letter because it applies only to the filing of a ‘complaint’, which is certainly not a ‘petition.’ ” Post at 578. The absurdity doctrine answers that question. To construe section 150.002 of the Texas Civil Practice & Remedies Code so that it does not apply to any suit filed in Texas courts would present the kind of “exceptional” result that would qualify as “absurd.” At a minimum, it would completely nullify the statute as to all such suits, and we cannot “lightly presume that the Legislature may have done [such] a useless act.” Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 485 (Tex.1998). We therefore construe the term “complaint” to mean “petition,” contrary to its common meaning, but we do so because the context of the term within the statute as a whole compels that result, not because we think doing so promotes a better public policy or would be more effective in promoting what we assume to be the statute's purpose. 18 The dissent suggests that section 150.002(c) alleviates any such time-crunch issues because the “time may be extended by motion or agreement.” Post at 580. The “such time” to which this provision refers, however, appears to be the thirty- day extension that subsection (c) grants for cases “in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that [a certificate of merit] could not be prepared.” TEX. CIV. PRAC. & REM.CODE § 150.002(c). Although the parties do not present, and we do not decide, that issue here, it at least appears that subsection (c)'s justice-based extension is available only when the plaintiff files the action within 10 days before limitations expires. If that is so, then subsection (c) would not be nearly as adequate as the dissent suggests. 1 JUSTICE LEHRMANN does not join the plurality opinion, but joins the remainder of this concurrence. 2 N.Y. Trust Co. v. Comm'r of Internal Revenue, 68 F.2d 19, 20 (2d Cir.1933) (L. Hand, J.). 3 TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex.2011). 4 ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 167 (2012). 5 Frank H. Easterbrook, Text, History, and Structure in Statutory Construction, 17 HARV. J.L. & PUB. POL'YY 61, 67 (1994). 6 Id. at 64 (emphasis in original). 7 Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex.2013). 8 Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 928 (Tex.2011). 9 Combs, 401 S.W.3d at 631. 1 442 S.W.3d 265, 2014 WL 2994622 (Tex.2014). 2 Unless otherwise indicated, all statutory references are to the Texas Civil Practice and Remedies Code. 3 TEX. CIV. PRAC. & REM.CODE § 150.002(a) (“In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who: (1) is competent to testify; (2) holds the same professional license or registration as the defendant; and (3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person's: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice.”); § 150.002(b) (“The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim.”); § 150.002(c) (“The contemporaneous filing requirement of Subsection (a) shall not apply

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014) 57 Tex. Sup. Ct. J. 1005

to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires.”); § 150.001(1–a) (“ ‘Licensed or registered professional’ means a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices, including but not limited to a corporation, professional corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship, joint venture, or any other business entity.”). 4 TEX.R. CIV. P. 38(a) (“At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party petition not later than thirty (30) days after he serves his original answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action.”). 5 Ante at 562 (“We limit our analysis to the words of the statute and apply the plain meaning of those words ‘unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.’ ”); id. at 563 (“Chapter 150 does not define the terms ‘plaintiff’ or ‘action,’ so we must give them their common, ordinary meaning unless the statute clearly indicates a different result.”). 6 Ante at 564. 7 Ante at 564. 8 Ante at 564. 9 Ante at 565. 10 Ante at 564 n. 11; see TEX.R. CIV. P. 85 (“The original answer ... may present a cross-action....”). 11 Ante at 565. 12 Ante at 569. 13 Ante at 569. 14 Ante at 563. 15 Ante at 567. 16 Ante at 566 & n. 14; see TEX. CIV. PRAC. & REM.CODE § 74.351(c) (“If the claimant does not receive notice of the court's ruling granting the extension [to file an expert report] until after the 120–day deadline has passed, then the 30– day extension shall run from the date the plaintiff first received the notice.”). 17 Ante at 568 n. 15. 18 Ante at 569 n. 17. 19 See Rules and Procedures, AMERICAN ARBITRATION ASSOCIATION, https://www.adr.org/aaa/faces/rules (last visited July 1, 2014) (no reference in rules to “plaintiff”); Code of Arbitration Procedure, FINANCIAL INDUSTRY REGULATORY AUTHORITY, http://www.finra.org/Arbitration AndMediation/Arbitration/Rules/CodeofArbitrationProcedure/ (last visited July 1, 2014); Rules of the Judicial Arbitration and Mediation Services, available at ADR Clauses, Rules, and Procedures, JAMS, http://www.jamsadr. com/rules-clauses/ (last visited July 1, 2014); Arbitration Rules, WORLD INTELLECTUAL PROPERTY ORGANIZATION, http://www.wipo. int/amc/en/arbitration/rules/newrules.html (last visited July 1, 2014); ICC Rules of Arbitration, INTERNATIONAL CHAMBER OF COMMERCE, http://www. iccwbo.org/products-and-services/ arbitration-and-adr/arbitration/icc-rules-of-arbitration (last visited July 1, 2014); Rules and Procedures, INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION, https://www.icdr. org/icdr/faces/i_search/i_rule? (the international division of AAA). 20 Ante at 566. 21 Supra note 567. 22 Citizens Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344, 348 (Tex.1979). 23 Ante at 574. 24 Ante at 575. 25 A defendant sued on Monday has 21 days in which to answer, TEX.R. CIV. P. 15, and 30 more days in which to file a third-party petition as a matter of right, TEX.R. CIV. P. 38. 26 Ante at 570. 27 Ante at 568 n. 15.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014) 57 Tex. Sup. Ct. J. 1005

28 TEX. CIV. PRAC. & REM.CODE § 71.051(e). 29 Id. § 71.051(h)(2) (counterclaimants and cross-claimants are also excluded). 30 ANTONIN SCALIA & BRYAN GARNER, READING LAW 20 (2012). 31 Id. at 63. 32 JOSEPH HELLER, CATCH–22 425 (Dell ed.1985) (1961).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)

334 S.W.3d 16 Court of Appeals of Texas, OPINION Dallas. Opinion by Justice FRANCIS. Thomas LEE, Helen Wilems, Individually and as Two competing lawsuits arising out of a fatality collision Representative of the Estate of Felicia Marie Lee, were filed in district courts in Dallas and Madison Deceased, Hartford Casualty General Agency, Inc., counties. Both trial courts asserted dominant jurisdiction. Southern County Mutual Insurance Co., Copart of This interlocutory appeal comes to us on an agreed order Houston, Inc., Copart of Texas, Inc., and Houston on a controlling question of law. See TEX. CIV. PRAC. & Copart Salvage Auto Auctions, LP, Appellants, REM.CODE ANN. § 51.014(d) (Vernon 2008). The issue v. presented is: “Under the ‘relation-back’ and/or the ‘first-filed’ GST TRANSPORT SYSTEM, LP, doctrine(s), which is the court of dominant jurisdiction?” and Henry Daneford, Appellees. To answer the issue, we must decide whether the relation- back doctrine, embodied in section 16.068 of the Texas Civil No. 05–08–00118–CV. | Oct. 1, 2008. Practice and Remedies Code, applies to a presuit discovery petition when determining which lawsuit was filed first. For Synopsis reasons set out below, we conclude it does not. Consequently, Background: Northbound motorist and his employer we conclude the Dallas County case was the first-filed suit brought action against southbound motorist, passenger's and affirm the trial court's order denying abatement. mother, individually and as representative of her daughter's estate, insurance companies, and salvage company, alleging Felicia and Thomas Lee were traveling south on Interstate southbound motorist was negligent in fatal car accident. 45 in Madison County when Thomas Lee lost control of his Passenger's mother filed a competing lawsuit against car, crossed the median, and collided with a northbound GST northbound motorist and his employer in another county. The Transport Systems tractor-trailer *18 truck driven by Henry 14th Judicial District Court, Dallas County, Mary Murphy, Daneford. Felicia Lee was killed on impact. Six weeks later, J., denied mother's plea to abate and asserted dominant on October 10, 2006, Felicia's mother, Helen Wilems, filed a jurisdiction. Mother appealed. rule 202 petition in the 12th Judicial District Court in Madison County to take oral depositions of several GST employees and others to investigate a potential claim and for use in an [Holding:] The Court of Appeals, Molly Francis, J., held that anticipated suit by Wilems. See TEX.R. CIV. P. 202. The “amended petition” filed by mother in the competing lawsuit trial court granted the request and ordered the depositions of did not relate back to presuit discovery petition filed earlier several GST employees, including Daneford. by mother in that suit, and thus the present suit was filed first, giving the court dominant jurisdiction. One week later, on December 5, 2006, GST and Daneford filed a lawsuit in the 14th Judicial District Court in Dallas County against Thomas Lee; Wilems, individually and Affirmed. as representative of her daughter's estate; two insurance companies; and the salvage company with possession of the Lees' vehicle. GST and Daneford alleged Thomas Lee, a Attorneys and Law Firms Dallas County resident, was negligent in the accident and sought damages for injuries to Daneford and property damage *17 Braden W. Sparks, Braden W. Sparks, P.C., Dallas, TX, to the tractor-trailer rig. They also sought injunctive relief for Appellant. against all the defendants to preserve the vehicle driven by E. John Gorman, Ronald L. Bair, Bairhilty, PC, Houston, TX, Thomas Lee. for Appellee. Wilems then filed a “First Amended Petition” in Madison Before Justices MOSELEY, RICHTER, and FRANCIS. County under the same cause number as the presuit discovery petition, alleging a wrongful death claim against GST and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)

Daneford. Both sides filed pleas to abate or dismiss the Raja, 216 S.W.3d 404, 407 (Tex.App.-Eastland 2006, orig. competing lawsuit in the respective county, arguing they were proceeding); Texacadian Energy, Inc. v. Lone Star Energy the first to file suit. In her plea in Dallas County, Wilems Storage, Inc., 829 S.W.2d 369, 372 (Tex.App.-Corpus Christi argued the filing of her wrongful death claim in Madison 1992, writ denied). County related back to the date of the filing of her rule 202 petition, making her suit the first filed. Ultimately, both trial [6] At the time GST and Daneford filed their lawsuit in courts denied the pleas to abate and/or dismiss and, in their Dallas County on December 5, 2006, Wilems had not brought orders, asserted dominant jurisdiction. This appeal addresses any cause of action arising from the collision. Rather, she the Dallas County order denying Wilems's plea in abatement. had sought presuit discovery to investigate facts relating to a potential claim. Consequently, the only issue before the [1] [2] We review the trial court's action in granting or Madison County district court at that time was whether to denying a plea in abatement using an abuse of discretion allow such discovery; it had not been asked to adjudicate any standard. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 claims arising from the collision. (Tex.1988). The trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference Nevertheless, Wilems argues her amended pleading (filed to any guiding rules or principles. See Downer v. Aquamarine after the Dallas County suit) related back to the date of Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). the filing of the rule 202 petition. Relying on rules of civil procedure 62 through 65, she argues that her amended [3] [4] As a rule, when cases involving the same subject petition filed in the same court under the same cause number matter are brought in different courts, the court with the first- superceded and supplanted her original rule 202 petition. filed case has dominant jurisdiction and should proceed, and Then, relying on section 16.068 of the Texas Civil Practice the other case should abate. Perry v. Del Rio, 66 S.W.3d and Remedies Code, she argues that because the pleading was 239, 252 (Tex.2001). The obvious reasons for abatement amended, it related back to the date of the original filing on are conservation of judicial resources, avoidance of delay, October 10, 2006, rendering the Madison County suit the first and “comity, convenience, and the necessity for an orderly filed. procedure in the trial of contested issues,” or, in other words, “to prevent races from court to court by vigilant counsel.” We do not disagree that an amended pleading supersedes Id. The first-filed rule also has several justifications, both and supplants earlier pleadings. TEX.R. CIV. P. 65; Lee v. jurisprudential and pragmatic. The jurisprudential reason is Na, 198 S.W.3d 492, 494 (Tex.App.-Dallas 2006, no pet.). that once a matter is before a court of competent jurisdiction, And whether it is appropriate to allege a lawsuit for the first “its action must necessarily be exclusive” because it is time in an “amended petition” in the same cause number as a “impossible that two courts can, at the same time, possess the rule 202 petition is not an issue we need to address. Even if power to make a final determination of the same controversy appropriate, we do not agree that the relation-back doctrine, as between the same parties.” Id. A pragmatic justification for embodied in section 16.068, can be read in this case to allow the rule is efficiency in that proceedings earlier begun may be the “amended pleading” to relate back to the filing date of the expected to be earlier concluded. Id. A final justification is rule 202 petition. fairness-in a race to the courthouse, the winner's suit should have dominant jurisdiction. Id. 1 [7] The relation-back doctrine, statutorily defined in section 16.068, originated as an equitable remedy designed to *19 [5] Rule 202 allows a person to petition the court effectuate justice. Lovato v. Austin Nursing Ctr., Inc., 113 for an order authorizing the taking of an oral and written S.W.3d 45, 55 (Tex.App.-Austin 2003), aff'd, 171 S.W.3d 845 deposition to either perpetuate the testimony for use in an (Tex.2005). It is designed to “protect litigants from loss of anticipated suit or to investigate a potential claim or suit. their claims by a plea of limitations in cases where that would TEX.R. CIV. P. 202.1. The proceeding is not a separate, otherwise occur and therefore should be liberally construed.” independent lawsuit, but is in aid of and incident to an Id. Section 16.068 provides: anticipated suit. Office Employees Int'l Union Local 277 v. If a filed pleading relates to a cause of Southwestern Drug Corp., 391 S.W.2d 404, 406 (Tex.1965) action, cross action, counterclaim, or (interpreting predecessor rule); In re Clapp, 241 S.W.3d defense that is not subject to a plea of 913, 917 (Tex.App.-Dallas 2007, orig. proceeding); In re limitation when the pleading is filed, a

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)

what it means, and therefore the words it chooses should be subsequent amendment or supplement the surest guide to legislative intent.” Id. (quoting Fitzgerald to the pleading that changes the facts v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 or grounds of liability or defense is (Tex.1999)). If the statute's language is unambiguous, its not subject to a plea of limitation plain meaning will prevail. Id. unless the amendment or supplement is wholly based on a new, distinct, or The plain language of section 16.068 provides that an different transaction or occurrence. amended pleading “is not subject to a plea of limitation TEX. CIV. PRAC. & REM.CODE ANN. § 16.068 (Vernon unless the amendment or supplement is wholly based on a 2008) (emphasis added). new, distinct, or different transaction or occurrence.” TEX. CIV. PRAC. & REM.CODE ANN. § 16.068. Thus, even In urging we apply section 16.068 to the circumstances in if we accept the argument that the rule and statute share this case, Wilems asserts the purpose of rule 202 “allows a similar purposes, the plain language of the statute restricts party to locate and preserve evidence before a claim is filed, its operation to negating a “plea of limitation” under the while limitations requires that it be filed soon enough to allow circumstances described in the section. Wilems does not the opposing party to do so while it is still available.” *20 claim that she stands to lose her cause of action on limitations She then argues that since both the statute and rule “deal with grounds; rather, her complaint involves a question of where the passage of time and the preservation of evidence,” the the lawsuit should be tried. Consequently, section 16.068 relation-back doctrine “should not apply in one but not the does not apply under the circumstances of this case. other.” We conclude the lawsuit filed in Dallas County on December [8] [9] [10] Even if we liberally construe a statute to 5, 2006 was the first filed. Accordingly, the trial court did not achieve its purposes, we may not enlarge or alter the plain abuse its discretion in refusing to abate the case. meaning of its language. Methodist Hosps. of Dallas v. Mid– Century Ins. Co. of Tex., 259 S.W.3d 358, 360 (Tex.App.- We affirm the trial court's order denying abatement. Dallas 2008, no pet.). In construing a statute, our objective is to determine and give effect to the Legislature's intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008). We look All Citations first to the statute's language to determine that intent, as we 334 S.W.3d 16 consider it a “fair assumption that the Legislature tries to say

Footnotes 1 There are exceptions to the dominant jurisdiction rule; however, in her brief, Wilems expressly states that none of the exceptions applies in this appeal.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Lindig v. City of Johnson City, Not Reported in S.W.3d (2012) 2012 WL 5834855

comply with city and state ordinances by obtaining necessary permits or demolish the structure. In four issues on appeal, 2012 WL 5834855 the Lindigs challenge the constitutionality of the building- Only the Westlaw citation is currently available. permit-fee ordinance on vagueness grounds and, in addition, SEE TX R RAP RULE 47.2 FOR complain of the related awards of civil penalties, attorneys' DESIGNATION AND SIGNING OF OPINIONS. fees, and prejudgment interest. We will reverse the trial court's judgment and render in part and remand in part. MEMORANDUM OPINION Court of Appeals of Texas, Austin. FACTUAL AND PROCEDURAL BACKGROUND 2 William L. LINDIG and Peggy L. Lindig, Appellants v. This dispute arose nearly five years ago when the Lindigs refused to pay a $1,000 building-permit fee for “residential CITY OF JOHNSON CITY, Appellee. remodeling” construction work on a home they purchased No. 03–11–00660–CV. | Nov. 14, 2012. for their daughter's use. In December 2007 the Lindigs applied for a building permit for a residential remodeling From the District Court of Blanco County, 424th Judicial project. William Lindig averred that, when he obtained the District, No. CV06530; Daniel H. Mills, Judge Presiding. permit application from City Hall, he was told by the City Secretary that he could begin the project without paying a fee. Attorneys and Law Firms The following month, however, Peter McKinney, the City's William M. McKamie, Adolfo Ruiz, McKamie Krueger, Building Official, acted on the Lindigs' permit application L.L.P., San Antonio, TX, Bradford E. Bulllock, Russell & based on concerns about compliance with the City's building Rodriguez, L.L.P., Georgetown, TX, for Appellee. code and the types of construction materials being used on the project. Upon inspecting the project, McKinney informed Zachary P. Hudler, Zachary P. Hudler, P.C., Johnson City, William Lindig that there would be a $1,000 permit fee TX, Mr. Samuel V. Houston, III, The Ford Firm, P.C., San for the project. 3 McKinney stated that the amount of the Antonio, TX, for Appellants. fee was based on his determination that the remodeling project should be treated as “new construction” because Before Chief Justice JONES, Justices ROSE and it involved “substantial work,” including some structural GOODWIN. framing, rewiring, and new plumbing, and would require all but two of the inspections normally required for new construction. Accordingly, McKinney assessed a permit fee MEMORANDUM OPINION of $1,000 for new construction in accordance with section 06– 015 of the City's Code of Ordinances. The Lindigs refused to J. WOODFIN JONES, Chief Justice. pay the fee, whereupon the City issued a stop-work order. *1 The City of Johnson City sued William L. Lindig and Peggy L. Lindig, seeking an injunction and civil penalties When construction continued despite the stop-work order, after the Lindigs continued to remodel their residential the City filed suit in Blanco County district court seeking property in Blanco County after the City issued a “stop work” injunctive relief against further construction, alleging that the order based on the Lindigs' failure to obtain a building permit. Lindigs had refused to obey the City's order to cease all work The Lindigs counterclaimed, asserting that the building- until a building permit was issued. SeeTex. Loc. Gov't Code permit-fee ordinance was unconstitutionally vague on its Ann. §§ 54.012(1) (municipality may bring civil action for enforcement of ordinance relating to materials or methods face or as applied to them. 1 On cross-motions for summary used to construct buildings), .016 (West 2008) (injunctive judgment, the trial court issued a permanent injunction in the relief available upon showing of substantial danger of injury City's favor and awarded the City $42,000 in civil penalties, or adverse health impact to any person or to property of $95,077 in attorneys' fees, up to $40,000 in conditional any person other than defendant). The City also sought attorneys' fees for an appeal, and pre- and post-judgment civil penalties for the Lindigs' continued noncompliance with interest. The trial court also ordered the Lindigs to either section 06–015 after receiving notice of noncompliance in the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Lindig v. City of Johnson City, Not Reported in S.W.3d (2012) 2012 WL 5834855

stop-work order. See id. § 54.017 (West 2008) (authorizing Up to and including 5000 square feet total area municipality to recover civil penalties if defendant violates ordinance after being notified of ordinance's provisions). In Plan Review and inspections—$1000.000 per house addition to their counterclaims, the Lindigs asserted a number of defenses to enforcement of the ordinance. The trial court 5000 square feet and greater in total area denied the Lindigs' motion for partial summary judgment as $1000.00 per house plus $0.12 per square foot beyond to the enforceability of the ordinance and granted the City's 5000 square feet traditional motions for summary judgment on the Lindigs' claims and the City's statutory claims for injunctive relief, Plan Review re-submittals civil penalties, and attorneys' fees. The only claims at issue on appeal, however, are (1) the City's actions for injunctive $100.00 per re-submittal relief and civil penalties, and (2) the Lindigs' counterclaim under the Texas Uniform Declaratory Judgments Act for Re–Inspections a declaration that the City's building-permit-fee ordinance $50.00 each for 2 or more re-inspections is unconstitutional—both on its face and as applied to the Lindigs' construction project—because it is impermissibly B. Commercial Plan Review and Inspections vague and thus imbues the Building Official with unfettered discretion to determine the fees to charge for residential- 1. Building Permit Fees for New Construction remodeling construction. a. $250 + $0.12 cents a square foot *2 On appeal, the Lindigs assert that (1) the trial court b. Fees for tenant finish out and shell buildings will be 75% erroneously concluded that the City's building-permit-fee of the above fees ordinance is enforceable, (2) the trial court erroneously assessed civil penalties and attorneys' fees based on an 2. Plumbing, Mechanical and Electrical fees for New unenforceable fee ordinance, (3) even if the fee ordinance is Construction (each) enforceable, fact issues precluded summary judgment on the City's claim for civil penalties and attorneys' fees, and (4) the a. $80.00 + $.05 cents a square foot City is not entitled to prejudgment interest either by statute or b. Fees for tenant finish out and shell buildings will be 75% as equitable relief. of the above fees

3. Fees for Additions, Alterations, Repairs, Demolition, DISCUSSION Screening Walls, Retaining Walls and accessory Buildings. The principal issue on appeal is whether the building- permit-fee ordinance, section 06–015 of the City's Code of The following fees shall be charged for small Ordinances, is unconstitutionally vague on its face or as construction jobs involving additions, alterations and applied to the Lindigs in this case. In section 06–015, the City repairs. Larger projects that involve substantial work adopted the following fee schedule for building permits: shall be charged as new construction at the discretion of the Building Official. A. Residential Plan Review and Inspections

Includes plan review and inspections for residential structures as detailed in the Johnson City Residential Code. Value of Construction Permit Fee $0.00 to $2,500.00 $85.00 $2,500.01 to $5,000.00 $100.00

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Lindig v. City of Johnson City, Not Reported in S.W.3d (2012) 2012 WL 5834855

$5,000.01 to $10,000.00 $145.00 $10,000.01 to $25,000.00 $210.00 $25,000.01 to $50,000.00 $400.00 $50,000.01 to $100,000.00 $600.00 $100,000.01 or more $600.00 for the first $100,000.00 + $75 for each 4 $25,000.00 or fraction thereof.

By its plain terms, section (A) of the fee ordinance the permit fee in this case. The Lindigs contend that section applies to residential construction, and section (B) applies 06–015 is unconstitutionally vague with regard to the fee to commercial construction. Section (A) appears to provide structure applicable to residential remodeling jobs—either on a flat fee of $1,000 for construction involving homes under its face or as it has been applied to them—because (1) the fee 5,000 square feet. Section (B), on the other hand, provides ordinance lacks a fee structure clearly applicable to residential a sliding fee scale for new commercial construction and remodeling projects, under either section (A) or section (B), commercial construction involving additions, alterations, and (2) there is neither a definition of “substantial work” repairs, and other non-comprehensive building activities. nor any guidelines governing the application of that term or Subsection (B)(3) includes both a cost-based permit-fee circumscribing the Building Official's discretion to deem a structure and a grant of authority to the Building Official to remodeling project to be new construction for purposes of treat a commercial building project as “new construction” establishing the applicable permit fee. if the Building Official determines, in his “discretion,” that the project “involves substantial work.” The City has also Ordinances are subject to the same constitutional adopted a series of international building codes, including the requirements and construction canons as statutes. Mills v. “International Residential Code for One- and Two–Family Brown, 159 Tex. 110, 316 S.W.2d 720, 723 (Tex.1958) (“The Dwellings” (the “IRC”). Section (A) of the fee ordinance same rules apply to the construction of municipal ordinances refers to the IRC regarding the scope of its application. The as to the construction of statutes.”); cf. Texas Liquor Control IRC in turn vests the Building Official with “the authority Bd. v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex.1970) (“A to render interpretations of [the IRC] and to adopt policies rule or order promulgated by an administrative agency acting and procedures in order to clarify the application of its within its delegated authority should be considered under the provisions.” same principles as if it were the act of the Legislature.”). To determine whether a statute is unconstitutionally vague, *3 McKinney (the City's Building Official) testified that, we begin by presuming that the statute is constitutional. pursuant to the authority granted to him under the IRC, Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003). The he construed section (A) of section 06–015 to apply only party challenging the statute's constitutionality has the burden to residential new construction but used section (B)(3) as of showing that the statute fails to meet constitutional requirements. Id. A statute or ordinance is unconstitutionally a guideline for determining fees for both residential and vague if the persons regulated by it are exposed to risk commercial remodeling projects. McKinney further testified or detriment without fair warning or if it invites arbitrary that he exercises discretion to deem some residential remodels and discriminatory enforcement by its lack of guidance for to be new construction if they “involve substantial work,” those charged with its enforcement. See Comm'n for Lawyer which results in the application of the fee outlined in section Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998); Attic (A) rather than use of the (B)(3) cost-based permit fee he Club, 457 S.W.2d at 45; City of Webster v. Signad, Inc., would otherwise use as a guideline for setting the fee for a 682 S.W.2d 644, 646 (Tex.App.-Houston [1st Dist.] 1984, commercial project. It is disputed whether McKinney derives writ ref'd n.r.e.). Implicit in this constitutional safeguard is his authority to do so from subsection (B)(3) or from his the idea that laws must have an understandable meaning and general authority under the IRC, but it is undisputed that he must set legal standards that are capable of application. City engaged in the process set forth in subsection (B)(3) to set

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Lindig v. City of Johnson City, Not Reported in S.W.3d (2012) 2012 WL 5834855

of Mesquite v. Aladdin's Castle, Inc., 559 S.W.2d 92, 94 before the damage has occurred (Tex.Civ.App.-Dallas 1977), writ ref'd n.r.e.,570 S.W.2d 377 or the improvement is started, the (Tex.1978) (per curiam).“It is established that a law fails finding shall be provided to the board to meet the standards of due process if it is so vague and of appeals for a determination of standardless as to leave a governing body free to decide, substantial improvement or substantial without any legally fixed guidelines, what is prohibited in damage. each particular case.”Id. Due process is violated and a law is invalid if persons of common intelligence are compelled to Once the Building Official has made the determination guess at a law's meaning and applicability. Attic Club, 457 required by section R105.3.1.1, the board of appeals S.W.2d at 45; Pennington v. Singleton, 606 S.W.2d 682, 689 determines whether the value of the proposed work (Tex.1980); Signad, 682 S.W.2d at 646. constitutes “substantial improvement” by applying the following guideline: *4 When applying the fair-notice test, courts allow statutes [A]ny repair, reconstruction, imposing economic regulation greater leeway than they allow rehabilitation, addition, or penal statutes. See Pennington, 606 S.W.2d at 689; Signad, improvement of a building or 682 S.W.2d at 646. “A law is not unconstitutionally vague structure, the cost of which equals or merely because it does not define words or phrases.”Vista exceeds 50 percent of the market value Healthcare, Inc. v. Texas Mut. Ins. Co., 324 S.W.3d 264, of the building or structure before the 273 (Tex.App.-Austin 2010, pet. denied). Only a reasonable improvement or repair is started. If degree of certainty is required, id.(citing Pennington, 606 the building or structure has sustained S.W.2d at 689), and the reasonable-certainty requirement substantial damage, all repairs are “ ‘does not preclude the use of ordinary terms to express considered substantial improvement ideas which find adequate interpretation in common usage regardless of the actual repair work and understanding.’”Signad, 682 S.W.2d at 646–47 (quoting performed. Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 76 L.Ed. 1167 (1932)). Moreover, “the mere fact that the parties IRC § R112.2.1. The IRC then lists several exclusions from disagree as to [an ordinance's] meaning does not mean we the term that provide further guidance in its application. must necessarily guess at its meaning.”Mills v. Fletcher, 229 Id. In comparison to the “substantial work” standard the S.W.3d 765, 770 (Tex.App.-San Antonio 2007, no pet.); see City's Building Official employed in the Lindigs' case, these Vista Healthcare, 324 S.W.3d at 273. provisions provide objective guidelines for applying the term “substantial” to certain residential property requiring In the present case, there are no guidelines governing the construction. application of the “substantial work” standard embodied in section 06–015 as construed and applied by the City's *5 As construed and applied to the Lindigs, the ordinance Building Official. Nor is there any evidence that this phrase at issue in this case employs language similar to that found has a peculiar or technical meaning as applied to some trade to be constitutionally infirm in City of Webster v. Signad, or science. Rather, the Building Official testified that he Inc. There, the court considered a vagueness challenge to a alone makes the determination based on his impressions and city sign ordinance that provided that any outdoor advertising experience regarding the scope of the work. Significantly, the signs could not be rebuilt if there was damage to “any City does use objective standards in similar circumstances substantial parts” of the sign. 682 S.W.2d at 645–46. The in two other parts of its building regulations. Pursuant to court held that the quoted phrase was fatally vague and section R105.3.1.1 of the IRC, the determination of whether violated due process because it did not provide operators existing buildings in areas prone to flooding are “substantially of outdoor advertising signs with fair and adequate notice improved or substantially damaged” is made according to the as to what sign repairs were permitted or prohibited. Id. at following standard: 647–48.The ordinance provided no definition or guidelines for measuring “substantial parts” of the sign, leaving the If the building official finds that the court to conclude that persons of common intelligence value of proposed work equals or would be left to guess the ordinance's meaning. Id. at exceeds 50 percent of the market 648.While the court noted that the words “substantial parts” value of the building or structure

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Lindig v. City of Johnson City, Not Reported in S.W.3d (2012) 2012 WL 5834855

are common, they are not self-explanatory. Id. at 647.As term “substantial work” unconstitutionally vague as applied the court explained, “Parts of a sign may be simultaneously to the Lindigs regardless of who is making that determination. ‘substantial’ and ‘insubstantial’ depending on whether the See Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554 test used is economic, physical, or functional.”Id. at 648.The S.W.2d 924, 928 (Tex.1977) (“A vague law impermissibly court illustrated the uncertainty and ambiguity that arose from delegates basic policy matters to policemen, judges, and application of the “substantial parts” standard as follows: juries for resolution on ad hoc and subjective basis, with the attended [sic] dangers of arbitrary and discriminatory If an economic test is used, how expensive must a repair applications.”(quoting Grayned v. City of Rockford, 408 be to rise to the level of “substantial”? If a sign is U.S. 104, 109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). valued at $30,000, is $1,000 in damage “substantial”? If Although courts recognize that myriad factual situations may a physical test is considered, is damage to one pole of arise, such that statutes can and should be worded with a five-pole sign “substantial”? Should “substantial parts” flexibility, the public must be provided fair notice of what of the sign include other than structural parts? Section is required or prohibited. Vista Healthcare, 324 S.W.3d at B(15) of the Ordinance defines a “sign structure” as 273. The “substantial work” standard applied in this case “the support, uprights, bracing, and framework of any does not do so and is therefore constitutionally infirm. 5 We outdoor advertising sign”; sign panels, readily movable and therefore sustain the Lindigs' first issue and conclude that changeable, are not defined as a part of the sign structure. section 06–015 is unconstitutionally vague to the extent it Is damage to one or more sign panels therefore to be imposes a new-construction building-permit fee based on the considered as damage to a “substantial” part of the sign? Building Official's determination that residential remodeling A sign with broken or inoperative lights is not functional construction “involves substantial work” and thus qualifies as during nighttime hours, although the cost of repairs is new construction. small in comparison with the sign's total cost. From a functional perspective, the lights are “substantial parts” *6 Having sustained the Lindigs' first issue, we also sustain of the sign, while from a cost perspective they are not. their second, third, and fourth issues relating to the damages The same ambiguity arises in numerous similar practical awarded to the City based on the trial court's erroneous considerations.... Operators of outdoor advertising signs enforcement of the $1,000 permit fee. With regard to those receive no fair and adequate notice from section H(2) of issues, it appears that there remain genuine issues of material the Ordinance as to what sign repairs are permitted or fact regarding whether the Lindigs were issued a permit prohibited. number; whether the Lindigs violated the building-permit- Id. fee ordinance or the IRC by failing to complete the permit application and obtain a permit, failing to comply with the As in Signad, people of common intelligence do not stop-work order that referenced the absence of a permit, have fair notice as to what permit fee is required under and failing to comply with the IRC both with regard to the section 06–015 for a residential remodel project. Just as application process and the materials used in construction; important, the seemingly boundless discretion vested in the and whether, when, and how the Lindigs were informed about Building Official to interpret and apply the term invites the stop-work order. These issues are distinct from whether arbitrary and discriminatory application. Cf. Coffee City v. the Lindigs were required to pay a fee to obtain a permit. 6 Thompson, 535 S.W.2d 758, 763 (Tex.Civ.App.-Tyler 1976, writ ref'd n.r.e.) (“An ordinance leaving the question of issuing or denying building permits to the arbitrary discretion CONCLUSION or determination of the city secretary without any rule or standard to follow is invalid.”). The City argues that We hold that the building-permit-fee ordinance (section the Building Official's discretion is not unfettered because 06–015 of the City's Code of Ordinances) is void for citizens have a right to appeal his determinations to the vagueness as construed and applied to the Lindigs because City's board of adjustment. The City does not explain the determination of what residential remodeling projects how a standardless determination by the Building Official involve “substantial work,” and thus may be treated as survives a vagueness challenge merely because an appeal new construction under the permitting ordinance, lacks body can review that determination. We conclude that the standards that are capable of application with a reasonable absence of reasonable guidelines or standards renders the degree of certainty. We therefore reverse the trial court's

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a permit, and failing to comply with the stop-work order. summary judgment in the City's favor and render judgment Accordingly, we reverse the portion of the trial court's in the Lindigs' favor on their declaratory judgment claim. summary judgment awarding the City civil penalties and Specifically, we render judgment that, as applied to the attorneys' fees and remand this cause to the trial court for Lindigs, section 06–015 is unconstitutionally vague to the further proceedings. extent it imposes a new-construction-permit fee based on the Building Official's determination that residential remodeling construction “involves substantial work” and thus qualifies as All Citations new construction. However, fact issues remain as to whether the Lindigs violated the building-permit-fee ordinance by Not Reported in S.W.3d, 2012 WL 5834855 failing to complete the permit application, failing to obtain

Footnotes 1 The Lindigs' countersuit also included claims against the City's board of adjustment and various City officials, as well as additional claims against the City alleging estoppel, civil conspiracy, and an unconstitutional taking. Those claims, however, were disposed of in the trial court and are not at issue on appeal. 2 In a previous opinion of this Court, we considered the Lindigs' interlocutory appeal from a trial-court order dismissing the Lindigs' claims for want of subject-matter jurisdiction. We affirmed the trial court's judgment with regard to claims based on alleged injuries to the public at large but otherwise reversed the judgment and remanded the cause for further proceedings. See Lindig v. City of Johnson City, No. 03–08–00574–CV, 2009 WL 3400982, at *6 (Tex.App.-Austin Oct.21, 2009, no pet.)(mem.op.). The extensive procedural history leading up to the summary-judgment proceedings at issue in this appeal were fully set forth in our previous opinion and need not be repeated in their entirety. See generally id. at *1–12.In this opinion, we recount the factual and procedural history of the case only to the extent it is pertinent to the issues in this appeal. 3 The parties do not dispute that the City required the Lindigs to pay $1,000 in fees for the remodeling project, but the evidence is inconsistent regarding whether the permit fee itself was $1,000 or something less. Although Peter McKinney testified that the Lindigs were required to pay the $1,000 permit fee applicable to new construction projects, David Dockery, the City Manager and City Administrator, testified before the board of adjustment that the $1,000 fee was actually composed of an $850 permit fee (calculated by taking the $1,000 permit fee for new construction and subtracting $150 for two inspections that would not be required for the remodeling project) and adding a $150 “res check fee.” Because this factual discrepancy does not alter our analysis, we characterize the fee as a $1,000 permit fee consistent with the parties' briefing in this case. 4 Section C of the fee ordinance includes the following “miscellaneous fees,” which are not at issue in this appeal: Any Activity listed below shall be charged the following fee associated with the activity.

Certificate of Occupancy (only charged when no permit $105.00 issued for new construction) Temporary Certificate of Occupancy (charged for all $105.00 temporary certificates of occupancy) Fence Permit $50.00 In-ground swimming pool $300.00 Spa or above-ground pool $105.00 Lawn Sprinkler $75.00 Construction Trailer $95.00 Drive Approach $75.00 per approach Sidewalk $75.00 per lot Additional Plan Review $75.00 per hour–1 hr min. Hourly Rate $105.00 per hour 5 The City's reliance on Vista Healthcare, Inc. v. Texas Mutual Insurance Co., 324 S.W.3d 264 (Tex.App.-Austin 2010, pet. denied), is misplaced. That case is distinguishable from this case in many ways, but to the extent it affirmed the constitutionality of the guidelines applicable to reimbursement rates for medical expenditures, it also reaffirmed the settled principle that an ordinance must provide fair notice of the applicable standards. Here, there are none.

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6 Several provisions of the IRC are germane to the issues on remand. Among those provisions are section R105.1 of the IRC, which appears to require that a permit be obtained regardless of whether there is a fee for the permit. Section R105.1 provides: Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit. Section R105.3 of the IRC governs applications for a permit and instructs: To obtain a permit, the applicant shall first file an application therefor in writing on a form furnished by the department of building safety for that purpose. Such application shall: 1. Identify and describe the work to be covered by the permit for which application is made. 2. Describe the land on which the proposed work is to be done by legal description, street address or similar description that will readily identify and definitely locate the proposed building or work. 3. Indicate the use and occupancy for which the proposed work is intended. 4. Be accompanied by construction documents and other information as required in Section 106.1. 5. State the valuation of the proposed work. 6. Be signed by the applicant, or the applicant's authorized agent. 7. Give such other data and information as required by the building official. Upon application for a permit and pursuant to section R105.3.1 of the IRC, the City's Building Official is required to review a permit application within a reasonable time, inform the applicant in writing if the application or construction documents do not conform to the requirements of pertinent laws, and state the manner in which compliance is lacking. The record is not developed as to the extent to which the Lindigs and the City's Building Official complied with these provisions.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

Opinion 206 S.W.3d 572 Supreme Court of Texas. Justice JOHNSON delivered the opinion of the Court.

MACK TRUCKS, INC., Petitioner, In this truck accident case the trial court excluded expert v. testimony as to what caused a post-accident fire that burned Elizabeth TAMEZ et. al., Respondent. the truck and the driver. After excluding the expert testimony because it was not reliable, the trial court granted summary No. 03–0526. | Argued Oct. 20, judgment. The court of appeals reversed. We hold that the 2004. | Decided Oct. 27, 2006. trial court did not err, reverse the court of appeals' judgment, | Rehearing Denied Dec. 22, 2006. and render judgment that the plaintiffs take nothing.

Synopsis Background: Survivors of petroleum tanker driver who died when his truck burst into flames brought action against the I. Background tanker manufacturer, asserting claims for negligence, strict On October 19, 1996, Abram Tamez was operating a Mack liability, breach of implied warranty, and misrepresentation. Truck tractor hauling a trailer of crude oil. Tamez was The 105th District Court, Nueces County, J. Manuel rounding a curve in the road when the tractor and trailer Banales, J., granted summary judgment for the defendant overturned. A fire erupted and burned the trailer, its cargo, manufacturer. The survivors appealed. The Corpus Christi– and the tractor. Tamez was able to climb out of the tractor, Edinburg Court of Appeals, Thirteenth District, 100 S.W.3d but he was badly burned and died as a result of his injuries. 549, reversed and remanded. Tanker manufacturer appealed.

As a result of Tamez's death, suit was filed 1 against the tractor's manufacturer, Mack Trucks, Inc., and others. 2 Holdings: The Supreme Court, Phil Johnson, J., held that: The Tamezes alleged that Mack defectively designed, manufactured and marketed the tractor. They claimed that [1] the Court of Appeals could not consider expert's causation Mack was liable for negligence, gross negligence, strict testimony from bill of exceptions, and products liability, breach of warranty, and misrepresentation. All five theories were based on the same complaint: diesel [2] testimony on causation from post-collision fuel-fed fire fuel from the truck's fuel system originated the fire that burned expert was not admissible. Abram Tamez. Specifically, the Tamezes alleged that the tractor had design and manufacturing defects because (1) Reversed and rendered. the fuel system was unreasonably prone to fail and release diesel fuel in an environment conducive to ignition and fire; and (2) the tractor had ignition sources *576 such as hot Attorneys and Law Firms manifolds and electric batteries in areas likely to contain released flammable fluids. The Tamezes also alleged that *575 Sean E. Breen, Randy Howry, Herman Howry & Mack failed to provide warnings about the defects. Breen, L.L.P., Austin, Robert Lee Galloway, Kellye Ruth Koehn, Thompson & Knight LLP, Houston, for petitioner. In connection with its claims against Mack, the Tamezes identified Ronald Elwell as an expert on post-collision, fuel- John Blaise Gsanger, William R. Edwards, William R. fed fires. Mack moved to exclude his testimony as unreliable Edwards III, The Edwards Law Firm, L.L.P., Corpus Christi, and moved for summary judgment. Mack asserted multiple John Gonzales, John Gonzales & Associates, San Antonio, grounds for seeking summary judgment. Some grounds for David O. Gonzalez, Law Offices of Baldemar Gutierrez, its motion were directed at particular plaintiffs, while some Alice, Glenn M. Boudreaux, Maryellen Hester, Boudreaux grounds were directed at all the Tamezes. One part of Mack's Leonard & Hammond, P.C., Houston, for for respondent. motion directed at all the Tamezes was a Rule 166a(i) motion urging that the Tamezes could present no evidence that any

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

alleged defects caused the fire. The Tamezes responded to the the Tamezes presented no summary judgment evidence of no-evidence part of Mack's motion, in part, by filing Elwell's causation and summary judgment was properly granted. deposition and his expert report. They also later submitted Elwell's testimony from a bill of exceptions.

II. Elwell's Bill of Exceptions Testimony Pretrial matters, including a Robinson 3 hearing pursuant to Mack's motion to exclude Elwell's testimony, were scheduled [1] Mack argues that the court of appeals erred by and heard. During the Robinson hearing Elwell testified. He considering testimony admitted only for the bill when it expressed the opinion that the fire was started by the tractor's reviewed the trial court's exclusion of Elwell's causation battery, which was located too near the fuel tanks, igniting the testimony. The Tamezes claim that whether Elwell's bill of tractor's diesel fuel, which in turn ignited the trailer's cargo exceptions testimony is considered is not relevant because of crude oil. his bill testimony added nothing to his Robinson hearing testimony. Further, in their brief and at oral argument the The trial court granted Mack's motion to exclude Elwell's Tamezes disclaim having urged in the court of appeals that testimony as to causation. The Tamezes later moved the the trial court erred in (1) holding a Robinson hearing, (2) the trial court to reconsider its decision. The court denied the manner in which the hearing was conducted, (3) the timing of motion but allowed the Tamezes to have Elwell testify again the hearing, or (4) denying their motion for reconsideration. to create a bill of exceptions. 4 The court signed an order Our review of their briefs in the court of appeals confirms the excluding the causation portion of Elwell's testimony from Tamezes' position. They do not contend here either that the being considered as evidence at any trial or hearing because bill of exceptions testimony was improperly excluded or that it was not sufficiently reliable. Mack's motion for summary the trial court erred in denying their motion to reconsider. judgment was granted. The purpose of a bill of exceptions is to allow a party to make The court of appeals reversed the summary judgment, a record for appellate review of matters that do not otherwise concluding that the trial court abused its discretion appear in the record, such as evidence that was excluded. TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); see also in excluding Elwell's causation testimony, 5 and also In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The concluding that Elwell's testimony provided some evidence court of appeals' opinion indicates that it considered Elwell's of causation. The court of appeals' opinion indicates that in bill of exceptions testimony in evaluating the admissibility reaching its decision it considered Elwell's testimony from of his opinions even though the trial court did not. See 100 both the Robinson hearing and the bill of exceptions. See 100 S.W.3d at 556, 559. As one example, the court of appeals S.W.3d 549, 556, 559, 561. referenced Elwell's opinion that at least one of the tractor's side fuel tanks became displaced during the rollover and Mack urges that the trial court correctly excluded Elwell's separated the balance line connecting the two fuel tanks. Id. testimony on causation, did not abuse its discretion in at 557. The court pointed to Elwell's testimony interpreting refusing to reconsider that ruling, and properly granted photographic evidence of steel straps which held the tanks as summary judgment because the Tamezes presented no support for his opinion. Id. The referenced testimony as to evidence of causation. Mack asserts, among other matters, Elwell's opinion and interpretation of photographic evidence that the court of appeals erred by (1) considering Elwell's was given as part of his bill of exceptions testimony, but he causation testimony from both the Robinson hearing and did not give similar testimony during the Robinson hearing. the bill of exceptions; (2) reversing the trial court's ruling as to admissibility of Elwell's causation testimony; and (3) [2] Except for fundamental error, appellate courts are not reversing the summary judgment. authorized to consider issues not properly raised by the parties. See In the Interest of B.L.D., 113 S.W.3d 340, We conclude that the trial court did not abuse its discretion 350–52 (Tex.2003). We have described fundamental error in excluding Elwell's testimony on causation and that the as those instances in which error directly and adversely court *577 of appeals erred in considering testimony from affects the interest of the public generally, as that interest the bill of exceptions in evaluating the trial court's exclusion is declared by the statutes or Constitution of our State, or of Elwell's causation testimony. We further conclude that instances in which the record affirmatively and conclusively

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

shows that the court rendering the judgment was without bare opinion will not suffice. Merrell Dow Pharms., Inc. v. jurisdiction of the subject matter. See McCauley v. Consol. Havner, 953 S.W.2d 706, 711 (Tex.1997). And, there cannot Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957). be “ ‘too great an analytical gap between the data and the The court of appeals did not classify the trial court's refusal opinion proffered.’ ” Gammill, 972 S.W.2d at 726 (quoting to allow the Tamezes to present further evidence and to then Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, reconsider its ruling to exclude Elwell's causation testimony 139 L.Ed.2d 508 (1997)). as fundamental error, and neither do we. The court of appeals erred in considering Elwell's causation testimony from the [6] [7] [8] [9] A trial court has broad discretion in bill of exceptions without having first determined, pursuant determining whether expert testimony is admissible. Zwahr, to properly assigned error, that the trial court erred in refusing 88 S.W.3d at 629. Its ruling will be reversed only if that to admit the testimony and reconsider its decision to exclude discretion is abused. K–Mart Corp. v. Honeycutt, 24 S.W.3d Elwell's causation opinions. Under the record and issues 357, 360 (Tex.2000). Because the party sponsoring the expert presented to us, we may not consider Elwell's testimony bears the burden of showing that the expert's testimony is from the bill of exceptions in determining whether the trial admissible, the burden of presenting understandable evidence court erred in excluding Elwell's causation *578 testimony. that will persuade the trial court is on the presenting party. See See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 n. 1 Robinson, 923 S.W.2d at 557. When an expert's “processes” (Tex.2004). or “methodologies” are obscured or concealed by testimony that is excessively internally contradictory, non-responsive or evasive, a trial court will not have abused its discretion in determining that the expert's testimony is not admissible. See III. Reliability of Elwell's Testimony GMC v. Iracheta, 161 S.W.3d 462, 470–72 (Tex.2005).

A. Standard of Review

[3] [4] [5] An expert witness may testify regarding B. Reliability Factors “scientific, technical, or other specialized” matters if the The court of appeals noted that Elwell's testimony largely expert is qualified and if the expert's opinion is relevant and applied his knowledge, training, and experience to the based on a reliable foundation. TEX. R. EVID. 702; Helena underlying data and that his methodology was not easily Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); tested by objective criteria such as identifiable scientific Robinson, 923 S.W.2d at 556. In determining whether formulas. The court of appeals concluded that under such expert testimony is reliable, a court should examine “the circumstances *579 the reliability of Elwell's opinion is not principles, research, and methodology underlying an expert's properly measured by a Robinson-factor analysis, but that the conclusions.” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, “analytical gap” test should be applied. 100 S.W.3d at 555– 629 (Tex.2002). When the testimony involves scientific 56. knowledge, the expert's conclusions must be “grounded ‘in the methods and procedures of science.’ ” Robinson, Mack argues that the court of appeals' analysis is flawed. 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow Mack urges that Elwell's inability to demonstrate at least one Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 of the Robinson factors, coupled with his inability to eliminate L.Ed.2d 469 (1993)). Otherwise, the testimony is “no more the crude oil tanker as the source of the fire, rendered Elwell's than ‘subjective belief or unsupported speculation.’ ” Id. testimony unreliable. The Tamezes, on the other hand, argue (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). We that because Elwell's testimony was based on his training and have identified several non-exclusive factors that trial courts experience, and not science, application of the analytical gap should consider when determining the reliability of expert test, as opposed to use of Robinson factors, was appropriate. testimony involving scientific knowledge. 6 We recognize They contend that Elwell's opinion was reliable because there that these factors may not apply when testimony is not were no analytical gaps in his testimony. See Gammill, 972 scientific, but, rather, involves technical or other specialized S.W.2d at 726. knowledge. Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 726 (Tex.1998). Even then, however, there must be some In Gammill we clarified that the list of non-exclusive factors basis for the opinion to show its reliability. Id. An expert's listed in Robinson may not be applicable when assessing

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

certain kinds of expert testimony. 972 S.W.2d at 720. We the underlying theory or methodology has been generally held that Robinson factors did not apply to the mechanical accepted as valid by the accident reconstruction and post- engineer expert under consideration in Gammill, even though collision fire investigation community; and (5) the non- his claimed expertise was scientific in nature. Id. at 727. In so judicial uses that have been made of his methodology. These holding, however, we did not mean to imply that a trial court are similar to factors 1, 2, 4, 5 and 6 of those enumerated in should never consider the Robinson factors when evaluating Robinson. But, as we have said above, that is not to imply the reliability of expert testimony that is based on knowledge, that the trial court was precluded from measuring Elwell's training or experience, or that the factors can only be applied methodology by Gammill's analytical gap analysis. when evaluating scientific expert testimony. We recognized that the criteria for assessing reliability must vary depending on the nature of the evidence. Id. at 726. C. Elwell's Causation Testimony

[10] The United States Supreme Court has noted that it [12] At the Robinson hearing, Elwell testified that the fuel is not possible to “rule out, nor rule in, for all cases and and battery system on the tractor were designed improperly, for all time the applicability of the factors mentioned in and suggested safer designs. He criticized the placement of Daubert.” Kumho Tire v. Carmichael, 526 U.S. 137, 150, the fuel tanks and also of the batteries' 7 proximity to the fuel 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Nor can the Court tanks. He criticized certain parts of the fuel system such as the “now do so for subsets of cases categorized by category crossover or “balance line” hose between the two fuel tanks of expert or by kind of evidence,” as “[t]oo much depends and the spigots by which the hose was attached to each of upon the particular circumstances of the particular case at the tanks. He referenced a particular report, which was not issue.” Id. In Robinson we likewise explained that the factors introduced, which he asserted supported his design critiques mentioned do not constitute an exclusive list and that the trial and his suggested safer designs. court's gatekeeping inquiry will differ with each particular case depending on the “[t]he factors a trial court will Elwell's analysis and conclusion that the fire began with find helpful in determining whether the underlying theories the fuel system and the battery system were based on and techniques ... are scientifically reliable.” Robinson, 923 the “fire triangle” theory. He explained that under the fire S.W.2d at 557. Thus, a trial court should consider the factors triangle theory, a post-collision fuel-fed fire such as the one mentioned in Robinson when doing so will be helpful in under consideration must be analyzed with an eye toward determining reliability of an expert's testimony, regardless of the ignition, fuel, and oxygen sources that were available. whether the testimony is scientific in nature or experience- Because the air provided oxygen, his analysis centered on the based. See Kumho Tire, 526 U.S. at 139, 119 S.Ct. 1167; other parts required to complete the triangle, “the source of Gammill, 972 S.W.2d at 726. fluids that could be ignited and what would it take to ignite those fluids and fuel, of course, is the primary suspect, either [11] In determining reliability, the trial court “should fuel or crude oil in this particular case.” undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an He did not testify that he inspected the remnants of the opinion from those facts, and how the expert applies the facts burned tractor and trailer or that he performed or reviewed and methods to the case at hand.” See Amorgianos v. Amtrak, any accident reconstruction analysis as to how the rollover 303 F.3d 256, 267 (2d Cir.2002). A significant part of the occurred and how different parts of the vehicle would have trial court's gatekeeper function is to evaluate the expert's been affected or harmed thereby. His Robinson hearing qualifications, listen to the testimony, view the evidence, testimony did not identify a particular alleged defect of the and determine which factors and evaluation methodology tractor's fuel system that he concluded was the source of a are most appropriate to apply. For example, in the present diesel fuel leak that initiated the fire. case the trial court would have been within its discretion to measure the reliability of Elwell's testimony, at least in On cross-examination he testified that he had read and relied part, by considering (1) the extent to which Elwell's theory on “over 5,000” studies on the subject of the causes of post- had been or could be tested; (2) the extent to which his collision fuel-fed fires. He did not specify any studies that methodology relied upon his subjective interpretation; (3) supported his conclusion as to the specifics involved in the the methodology's potential rate *580 of error; (4) whether

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

accident, and none were offered as evidence for the trial court causation to be reliable, he was required to present some to consider in evaluating his testimony. methodology that reliably supported his opinions that the “fuel” and “ignition” parts of the fire triangle were supplied, In coming to his conclusion that the fire began with the fuel respectively, by the tractor's alleged fuel system defects and system and battery system of the tractor, Elwell asserted that battery system. He did not do so. The mere fact that the fuel he relied on several specific factors and facts. Each of the system had a design that could cause the hoses to separate is factors and facts he enumerated supported conclusions that not evidence that the hoses separated in this case. Tamez was burned by diesel and that the diesel ignited so quickly that Tamez could not escape. Elwell's testimony did no more than set out “factors” and “facts” which were consistent with his opinions, then Even assuming that what Elwell relied on and classified as conclude that the fire began with diesel fuel from the tractor. “factors” and “facts” were true, however, which Mack denies, The reliability inquiry as to expert testimony does not ask the factors and facts are merely consistent with diesel fuel whether the expert's conclusions appear to be correct; it asks having been released during the rollover and Tamez having whether the methodology and analysis used to reach those been burned by part of the fire fed by the tractor's diesel fuel. conclusions is reliable. Kerr–McGee Corp. v. Helton, 133 They are not probative evidence that diesel fuel was released S.W.3d 245, 254 (Tex.2004). The trial court was not required because of one of the asserted defects in the fuel system or to accept his opinions at face value just because Elwell was that it was ignited by the battery system. He did not testify experienced in examining post-collision fuel-fed fires. See to having analyzed, tested, or investigated the characteristics Gammill, 972 S.W.2d at 726 (holding that a court should not of batteries like the battery in the wrecked tractor to support admit opinion evidence which is connected to existing data his *581 opinion that the battery system was involved in only by the ipse dixit of the expert). causing the fire. He failed to set out any process by which he excluded other sources for ignition of the diesel fuel such We conclude that the trial court did not abuse its discretion as mechanical sparks which could be generated when parts when it excluded Elwell's testimony on causation. The court of a truck make contact with the pavement, or ignition of the of appeals erred when it determined otherwise. cargo fuel which in turn could have ignited the diesel fuel. See Gammill, 972 S.W.2d at 728; see also Robinson, 923 S.W.2d at 559 (noting that an expert who is trying to find a cause IV. The Summary Judgment of something should carefully consider alternative causes). For example, when Elwell was asked during the Robinson Mack moved for summary judgment on multiple grounds, hearing why he concluded that the fire originated with the including the ground that there was no evidence Mack's fuel fuel and battery systems instead of with the crude oil cargo, system design was a producing or proximate cause of Tamez's his response was that “if [crude oil] remains to be burned, injuries. The Tamezes contend that even without Elwell's that after five or ten or fifteen minutes, then that's not the testimony as to causation, they presented sufficient evidence fuel that started the fire.” He did not explain any investigation to survive summary judgment. or research that supported such a conclusion. He did not elaborate on the amount of crude that was in the trailer when the wreck occurred, calculate the amount of time it would take the cargo to burn, or discuss or compare the relative ease of A. Standard of Review ignition or flash points of the crude and diesel fuel. He did not A summary judgment motion pursuant to TEX. R. CIV. P. address any analysis or process by which he concluded that 166a(i) is essentially a motion for a pretrial directed verdict. some part of a trailer of crude oil would continue to burn for See *582 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d several minutes only if it was ignited by, rather than being the 706, 711 (Tex.1997). Once such a motion is filed, the burden ignitor of, diesel fuel from the tractor's fuel system. shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in In sum, Elwell did not testify at the Robinson hearing to the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547, a methodology by which he reached the conclusions as 550 (Tex.2005). We review the evidence presented by the to the fire having been caused by defects in the tractor's motion and response in the light most favorable to the party fuel and battery systems. In order for Elwell's testimony on against whom the summary judgment was rendered, crediting

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evidence favorable to that party if reasonable jurors could, fuel, that Tamez was burned by diesel fuel because Tamez and disregarding contrary evidence unless reasonable jurors was coated with a shiny, oily substance and did not smell like could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 crude oil; (2) a notation by Mack's accident reconstruction (Tex.2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d expert noting a diesel fuel spill on the road; (3) a statement by 193, 208 (Tex.2002). Elwell that the design of the system was such that if there was any significant dislodgement of the fuel tanks, the fuel line would separate; 8 (4) a statement by Mack's expert witness B. Causation that it was possible that a battery cable found in the tractor had arced and ignited the fire, although *583 the witness Producing or proximate cause is an element of all ultimately concluded that the crude-oil cargo caused the fire; of the Tamezes' claims, which included negligence, and (5) an eyewitness's statement implying that it took the fire misrepresentation, breach of warranty, and design, a short period of time to reach Tamez, who exited and crawled manufacturing, and marketing defects. Causation-in-fact is away from the tractor after the accident. common to both proximate and producing cause, including the requirement that the defendant's conduct or product be a [14] [15] [16] Proof other than expert testimony substantial factor in bringing about the injuries in question. will constitute some evidence of causation only when a See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 layperson's general experience and common understanding (Tex.1995). would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between All the Tamezes' theories regarding the fire's cause the event and the condition. Expert testimony is required were based on allegations that the tractor's fuel system when an issue involves matters beyond jurors' common was defectively designed and manufactured so as to be understanding. See Alexander v. Turtur & Assocs., 146 unreasonably prone to fail and release flammable fluids in S.W.3d 113, 119–20 (Tex.2004). Whether expert testimony an environment conducive to ignition and fire; that such is necessary to prove a matter or theory is a question of law. defects caused the release of diesel fuel; and that a defectively See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, designed and placed ignition source then caused ignition of 89 (Tex.2004). In Fulgham we held that expert testimony the released diesel. was necessary to establish the standard of care for connecting refrigerated trailers to tractors and for the frequency and type [13] To survive summary judgment on their theory that of inspection and maintenance of such connectors, because a defect in the tractor's fuel system was the cause of those matters were not within the general experience and the fire, the Tamezes were required to present more than common understanding of laypersons. Id. at 91; See also evidence of a fuel leak. See Ford Motor Co. v. Ridgway, Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.- 135 S.W.3d 598, 600–01 (Tex.2004) (affirming summary Amarillo 1999, pet. denied) (holding that performance of judgment because the plaintiffs' evidence “establishe[d] only mechanical work on turbine aircraft engines is not within the that a fire occurred, and [the plaintiffs' expert] could say no experience of a layperson). more than that he ‘suspects' the electrical system caused the fire”). They had to present evidence that (1) the diesel fuel [17] A lay juror's general experience and common leaked because of one or more of the alleged defects, and (2) knowledge do not extend to whether design defects such as the leak caused by the defect was the ignition point for the fire. those alleged in this case caused releases of diesel fuel during See Iracheta, 161 S.W.3d at 470 (holding that the possibility a rollover accident. See Nissan Motor Co., 145 S.W.3d at that the fire occurred in the manner the plaintiff suggested is 137 (stating that we have consistently required competent not enough to support the jury's findings); Nissan Motor Co. expert testimony and objective proof that a defect caused the v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004). condition complained of). Nor would a lay juror's general experience and common knowledge extend to determining The Tamezes point to several parts of their summary which of the fire triangle's fuel sources, diesel from the judgment evidence that they say are sufficient, individually tractor or crude from the tanker, would have first ignited, or collectively, to defeat summary judgment: (1) an accident or the source for the first ignition. That part of Elwell's witness's “personal assumption,” based on his averred testimony that was properly before the trial court and the experience with and ability to recognize the smell of diesel testimony of other experts as to the amount of time they

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See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 spent in studying, investigating, and working in the field of (Tex.1998). post-collision, fuel-fed fires demonstrated the intricacies of such subject matter. Issues such as those regarding the fire's *584 [19] The plaintiffs also rely on circumstantial cause(s) present matters beyond the general understanding evidence suggesting that the fire quickly reached Tamez. That and common knowledge of lay jurors. Proof of causation in evidence is consistent with the Tamezes' theory that the fire this case also required expert testimony. originated with fuel from the tractor's diesel fuel system. But, such evidence does not make it more likely than not that the The summary judgment evidence presented by the Tamezes battery or some other allegedly improperly located ignition did not contain proof that any of the possible sources of diesel source ignited diesel from the tractor, as opposed to other fuel was more likely than any other, or more likely than the possible sources of ignition such as the cargo of crude oil. crude oil cargo, to have been the source of liquids that first Accordingly, the circumstantial evidence is not sufficient to caught fire. Accordingly, there is no evidence that the source prevent summary judgment. Id. was one of the alleged fuel system defects. Kindred v. Con/ Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

[18] The Tamezes also alleged that several ignition sources V. Conclusion were located in areas likely to contain diesel that would be released in a wreck. The Tamezes point to expert testimony The plaintiffs produced no evidence that the alleged defects that an arced battery cable found in the tractor could possibly of the Mack tractor were a cause-in-fact of injuries to Abram have ignited the fire. But, testimony that the battery or its Tamez. Because causation is a required element of each of cable could possibly have ignited the fire is not evidence that the Tamezes' claims, the trial court properly granted summary it probably did so. The expert who provided this testimony judgment. Accordingly, we reverse the court of appeals' could not determine whether the cable arced before the fire judgment and render judgment that the plaintiffs take nothing. was ignited or as it was being burned by an otherwise-ignited fire. As proof of what caused the fire, such evidence is All Citations speculative and is insufficient to prevent summary judgment. 206 S.W.3d 572, 50 Tex. Sup. Ct. J. 80

Footnotes 1 Elizabeth Tamez filed suit. Elsa Guerrero, Rosendo Tamez, Sr., Dora Tamez, Rosa Elvia Gonzales, Donna Kim Cantu, and Terrie L. Zay intervened. Rosa subsequently nonsuited. For ease of reference all the claimants will be referred to collectively as “the Tamezes” or “the plaintiffs.” 2 Other defendants were Fruehauf Trailer Corporation, Norco Crude Gathering, Inc., Glitsch Canada, Ltd., and Snyder Tank Corp. The claims against those defendants were either nonsuited or settled and were severed from the claims against Mack. 3 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995). 4 An offer of proof is sometimes referred to as a bill of exceptions. See TEX.R. EVID. 103(a)(2); TEX.R.APP. P. 33 (comment to 1997 change). As the court of appeals and the parties refer to the offer of proof in this case as a bill of exceptions, we will, also. 5 After Elwell's expert testimony was excluded by the trial court, the Tamezes obtained testimony from another expert witness, Douglas Holmes. Mack moved to exclude Holmes's testimony, and the trial court orally granted the motion. The court of appeals upheld the exclusion of Holmes's testimony. 100 S.W.3d 549, 559. The Tamezes do not challenge the court of appeals' ruling as to Holmes. 6 Id. (identifying the following considerations regarding reliability of scientific testimony: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have been made of the theory or technique). 7 The record is not clear whether the tractor had one battery or two.

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8 Elwell's testimony on design defect, as opposed to his testimony on causation, was not excluded.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Mack v. Moore, 669 S.W.2d 415 (1984)

attorney's fees incurred in the collection and prosecution of this case. The case was tried to the court. The appellees 669 S.W.2d 415 defended on the basis that all fees incurred had been paid in Court of Appeals of Texas, full, and further asserted that the charges alleged by appellant Houston (1st Dist.). were not in accordance with their set fee of $90.00 per month. Bruce R. MACK d/b/a Mace & Mack, an The appellant presented his case-in-chief and rested, and the association of attorneys at law, Appellant, appellees rested immediately thereafter, calling no witnesses v. to controvert appellant's claim. Andy and Wilma MOORE d/b/a Andy Moore The trial court entered judgment for appellant, finding that & Son Aeronautical Specialties, Appellees. the appellees requested the services be performed, that the No. 01–83–0549–CV. | April 12, 1984. services were performed to the satisfaction of appellees, that there was no agreement whereby appellees would pay Attorney brought a suit upon a sworn account for accounting appellant a set fee per month, and that the appellees had and tax services performed for clients and for attorney fees agreed to pay the reasonable value of the services which were incurred in selection and prosecution of case. The County performed. The court then rendered judgment for appellant, Civil Court at Law No. 3, Harris County, Hugo Touchy, J., finding that the reasonable value of the appellant's services entered judgment awarding fees for less than those requested, was $275.00 per month, and the amount still due and owing and attorney appealed. The Court of Appeals, Bass, J., held by appellees was $1,035. Additionally, the trial court awarded that: (1) where three expert witnesses testified that $4,865 appellant one third of the final judgment, or $300.00, in was reasonable value of attorney's services and client did attorney's fees. The appellant appeals on the points that trial not impeach expert witnesses on cross-examination, the only court's valuation of both his services and his attorneys fees reasonable conclusion to be drawn from the evidence was that was erroneous. $4,865 was the reasonable value of services rendered, and when that amount, less $1,715 for prior payments by clients, The appellant, Bruce R. Mack, is a licensed C.P.A. and left a balance of $3,150, that was amount which attorney tax attorney, with an L.L.M. in taxation. His tax experience should have been awarded in judgment, and (2) where trial includes numerous years as an agent and regional supervisor court in its conclusions of law implied that the usual and for the I.R.S. and as an auditor with a large public accounting customary attorney fees were one-third of the amount of firm. the judgment, the award of $300 in attorney fees would be increased to $1,050. In January of 1981, the appellees retained the appellant to perform certain tax work in connection with their business, Reversed and rendered. including the reconciliation of their prior bank accounts and employee payroll tax records, and the preparation and filing of their income tax return for 1980. In connection with this Attorneys and Law Firms work, appellant was to review prior years payroll tax returns and to amend as necessary, file any and all necessary reports, *416 Bruce B. Mack, Mace & Mack, Houston, for appellant. and then keep appellees' records current through the quarterly *417 John Gilleland, Houston, for appellees. preparation of payroll tax returns, sales tax reports, and the monthly preparation of their profit and loss statements. Before WARREN, COHEN and BASS, JJ. Appellant completed the agreed work, preparing all necessary returns and delivering this work to the appellees. The degree OPINION of difficulty in the preparation of these reports was greatly enhanced by various errors within the prior reports and bank BASS, Justice. statements. This required the appellant supervisory employee to have several conferences with appellees in an attempt to This is a suit upon a sworn account, and in the alternative reconcile these errors. The appellant personally presented his for quantum meruit, seeking $3,150.00 in fees for accounting final invoice of $4,865.00 to appellees, and explained the and tax services performed for appellees and $1,950.00 in

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Mack v. Moore, 669 S.W.2d 415 (1984)

charges as they related to the work which he performed. Appellees agreed to pay the invoice and further negotiated 3. Plaintiff is entitled to attorney's fees equal to one-third a set fee of 275.00 per month for future work, including of the judgment, being $300.00. the periodic preparation of the company's payroll reports 4. Plaintiff's right to collection of such indebtedness is etc. However, after they had paid appellant $1,715.00, of not barred by limitations. the invoice, appellees refused to pay the remaining balance, Initially, the appellant contends the trial court erred in not claiming the bill was paid in full. This action left $3,150.00 finding as a fact that the reasonable value of the services he still due and owing on the account, and the appellant was performed and which were still due and owing to him by the forced to file suit to collect the balance. appellees was $3,150.00, because there is no evidence upon which to support any other conclusion, or alternatively, the Trial was to the court, and after judgment for appellant the trial court's finding as to the amount due and owing is against trial judge, upon proper request, made the following findings the weight of the evidence. In this point of error, appellant of fact and conclusions of law. combines a “matter of law” point and an “against the great weight” point in one ground of error. In essence, the appellant contends the evidence introduced at trial established the value FINDINGS OF FACT of his services due and owing to be $3,150.00, as a matter of law, and asks us to reverse the trial court judgment and render 1. On or about January 1, 1981, Defendants engaged judgment for appellant in this amount. Plaintiff to perform certain accounting and tax work for them. In the alternative, appellant asserts the finding of the trial court as to the value of his services is so against the great 2. Defendants had no agreement with Plaintiff for a set weight and preponderance of the evidence as to be manifestly sum for the work but *418 were to pay the reasonable unjust, and thus requires a reversal of the judgment and value of services rendered. remand of the case for a new trial. 3. Plaintiff performed the services as reflected on his invoices to Defendants. [1] To determine a “no evidence” or “matter of law” point this court must disregard all evidence contrary to the 4. Defendants were satisfied with the services performed trial court's finding, and if there is any remaining evidence by the Plaintiff. which would support the verdict or judgment, the trial court's judgment must be upheld. If, after the removal of all contrary 5. The reasonable value of the services performed evidence this court finds an absence of any evidence which by Plaintiff is $2,750.00 (10 months x $275.00) and would support the verdict or judgment, a contrary conclusion Defendants have paid to the Plaintiff $1,715.00 leaving to the verdict or judgment is required as a matter of law. In a balance due of $1,035.00. Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). 6. Plaintiff had to engage John J. Eikenburg, a Texas The finding at issue before this court is the amount of attorney, to collect plaintiff's claim. the trial court's award as the reasonable value of the 7. Plaintiff is entitled to attorney's fees under Article accounting services which were performed. The direct, 2226, Texas Revised Civil Statutes. positive, uncontroverted evidence as presented by the three experts, including appellant and appellant's ex-employee (the appellees' present accountant) was that the charges as CONCLUSIONS OF LAW evidence in the invoices were reasonable charges for the 1. Defendants are indebted to Plaintiff for the sum of services which were performed. However, in spite of this $1,035.00. fact the trial court assessed the value of those service at the arbitrary figure of $275.00 per month, the amount the parties 2. The indebtedness of Defendants to Plaintiff bears had agreed to for the preparation of reports necessary for the interest at the rate of six percent per annum from January maintenance of their records. This figure did not consider the 1, 1982, until date of Judgment. extensive work required to update and correct appellees' back records, so that they were in a position to be maintained.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Mack v. Moore, 669 S.W.2d 415 (1984)

rendered: the appellant, his ex-employee, the appellees' [2] [3] It is the general rule that since the trier of the present accountant, John Mason, and an independent, fact is the sole judge of the credibility of the witnesses and disinterested C.P.A., Patrick Cantrell. Each of these witnesses the weight to be given their testimony, opinion evidence is reached the same conclusion, i.e., that the charges as reflected insufficient to conclusively establish a fact issue at trial, and by the invoice were reasonable. Appellees called no witnesses thus give rise to a directed verdict or in this case a reversal to refute this determination nor did they otherwise impeach and rendition. However, in Teal v. Powell Lumber Co., 262 these witnesses on cross-examination. Therefore, here, as in S.W.2d 223 (Tex.Civ.App.-Beaumont, 1953, no writ), the Exxon, supra, the only reasonable conclusion which could *419 court applied this test to the trial judge but further be drawn from the evidence was that stated by appellant's stated that it is only within the province of court or jury to experts. decide conflicting evidence, and where there is evidence on an issue and no evidence to the contrary, the court or jury The court, in making its findings of fact, stated that the has no right to disregard the evidence and decide the issue in amount owed and agreed by the appellees was the reasonable accordance with their own wishes. Id at 225. In the present value of the services which were performed. That reasonable case, the only evidence presented on this issue supported value was conclusively shown through expert testimony to appellant's valuation. have been $4,865.00. That amount, less $1,715.00 for prior payments by the appellees, left a balance of $3,150.00, which [4] Furthermore, in Exxon Corporation v. West, 543 S.W.2d is the amount which appellant was entitled to in judgment. 667 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref'd, n.r.e.) Since here, as in Exxon, supra, “it does not appear that the Chief Justice Evans reviewed the effect of uncontroverted cause should be remanded for further proceedings in the expert testimony and its ability to conclusively establish a fact interest of justice or for any other reason,” the judgment of issue. In support of this court's reversal and rendition, Justice this court should be one of rendition. Exxon, supra, at 674; Evans stated that while such evidence is generally held not Hodges Tire Co. v. Kemp, 334 S.W.2d 627 (Tex.Civ.App.- to be binding on the trier of fact if more than one possible Forth Worth 1960, no writ). conclusion can be drawn from the facts, it may be regarded as conclusive if the nature of the subject matter require the In his second point of error, the appellant asserts the trial fact finder to be guided solely by the opinion of experts and courts findings of $300.00 in attorney's fees had no support the evidence is otherwise credible and free from contradiction in the evidence and asks this court to reverse and render and inconsistency. judgment for the stated amount of $1,950.00.

[5] [6] Furthermore, this rule applies even where [8] [9] The court in its findings of fact stated that appellant the testifying experts are interested witnesses if their had the right to recover the reasonable cost of attorneys fees. testimony is clear, direct, positive, if nothing creates a Unlike the above expert testimony, there are factors other reasonable suspicion as to the witness' credibility and if the than the testimony of expert witnesses which could have been opposing party could have offered but failed to offer, any used by the court in its determination of what amount was evidence in contradiction thereof. This failure to offer such “reasonable.” Some of these factors which may have been contrary evidence “constitutes effective corroboration” of considered by the court are: the complexities *420 of the the witnesses' testimony. Id. at 678. See also, Collora v. case, the amount of time spent in preparation, the quality Navarro, 574 S.W.2d 65 (Tex.1978) stating that testimony of counsel, and the amount of potential and actual recovery. by interested lay witnesses may be the basis for a directed Moreover, the judge would have been familiar with the fees verdict, where the testimony “pertains to matters reasonably in this area, and could have drawn upon his own expertise capable of exact statement, and is clear, direct, positive and in his decision making. Therefore, since the amount and internally void of inconsistencies and contradictions, and is reasonableness of attorney's fees is a question of fact which uncontroverted either by testimony of other witnesses or by allows the consideration of various intangibles incapable of circumstances—in short, when there is nothing to cause any review by this court, the trial court award cannot be disturbed reasonable suspicion as to its truth.” Id. at 69. absent an abuse of discretion and we do not find such an abuse in the case before this court. [7] In the present case, three expert witnesses testified as to the reasonableness of the charges for the services

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accordance with the trial court's conclusions of law, and [10] Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp.1984) reflect the corresponding award of attorney's fees of one third states that the usual and customary fees charged for the type the corrected judgment, or $1,050. of work performed are presumed reasonable. There was no testimony introduced stating the usual and customary fees for We accordingly reverse the judgment of the trial court and this type of action. Furthermore, the court in its conclusions render judgment in the amount of $3,150.00 upon the unpaid of law implied that the usual and customary fees in this account, and for $1,050.00 for the appellant's attorney's fees. area are one-third the amount of judgment, and it apparently was on this basis that the court entered judgment of $300.00 in attorney's fees. Therefore, in light of our disposition of All Citations appellant's first point of error, the award of $300.00 is patently incorrect. Therefore, we order the judgment be reformed in 669 S.W.2d 415

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)

concluding it had not properly secured its lien and granting a summary judgment in favor of Mid–Century Insurance 259 S.W.3d 358 Company of Texas. Asserting four points of error, Methodist Court of Appeals of Texas, contends its lien satisfied the requirements of section 55.005 Dallas. of the Texas Property Code and Mid–Century was not entitled METHODIST HOSPITALS OF DALLAS d/ to a no-evidence summary judgment. After reviewing the b/a Methodist Medical Center, Appellant summary judgment record, we conclude Methodist did not v. substantially comply with the requirements of section 55.005. We affirm the trial court's judgment. MID–CENTURY INSURANCE COMPANY OF TEXAS, Appellee.

No. 05–07–00897–CV. | July 2, 2008. I.

Synopsis On October 11, 1999, Lori Ward was involved in a car Background: After hospital filed hospital lien for payment accident with a person insured by Mid–Century Insurance of hospital bills accrued by patient injured by third-party in Company. Ward was taken to Methodist Medical Center auto accident, and patient received settlement from third- where she was treated for her injuries. The bill for the medical party's insurer for the accident, hospital brought action services and supplies provided to Ward by Methodist was against the third-party's insurer to enforce the lien. The 289th $8,656.75. Judicial District Court, Dallas County, Emily Tobolowsky, J., 2007 WL 5112362, granted insurer's motion for summary Ward made a claim with Mid–Century for the damages she judgment. Hospital appealed. suffered as a result of the accident. Mid–Century evaluated the claim and offered her its policy limits. The claim was settled on September 6, 2000. Mid–Century issued a check [Holding:] The Court of Appeals, Morris, J., held that dated September 20, 2000 made jointly payable to Ward hospital's notice of lien did not substantially comply with and her attorney, Juan Hernandez. Hernandez testified that requirements of statute, and, thus, was unenforceable. someone from his office picked up the check that same day.

One day later, on the afternoon of September 21, 2000, Affirmed. Methodist filed a written notice of lien for the medical services and supplies provided to Ward. The lien listed Ward as the injured person treated by *360 Methodist. In addition, Attorneys and Law Firms however, the notice incorrectly listed the date of the accident as October 12, 1999 and stated the person liable for the *359 Blair Grant Francis, Joe Don Ridgell, Francis, Orr & accident was Ward rather than the third party insured by Mid– Totusek, L.L.P., Dallas, TX, for Appellant. Century. Finally, the notice incorrectly stated the amount of Hermon L. Veness, Jr., Carnahan Thomas, L.L.P., Southlake, the lien as $9,189.29. The lien was filed with the county clerk TX, for Appellee. and was made available to the public approximately ten to twelve days later. Before Justices MORRIS, WHITTINGTON, and FITZGERALD. When Methodist discovered that the settlement proceeds from Mid–Century had been disbursed, it filed this suit against Mid–Century and Hernandez to enforce its lien. 1 Mid– OPINION Century moved for a traditional and no-evidence summary judgment arguing that Methodist failed to properly secure its Opinion by Justice MORRIS. lien as required by section 55.005 of the Texas Property Code. In this hospital lien case, Methodist Hospitals of Dallas d/b/ Methodist replied and filed a cross-motion for summary a Methodist Medical Center contends the trial court erred in judgment arguing that it complied with the requirements of section 55.005 as a matter of law. After considering the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)

statutory notice requirements, Methodist only complied with motions, the trial court granted Mid–Century's motion for two. Methodist contends its *361 error in stating the date of summary judgment and denied Methodist's cross-motion for the accident is a minor discrepancy because the actual date summary judgment. The court ordered that Methodist take of the accident was only an hour and twenty-four minutes nothing by its claims. This appeal ensued. earlier. There is nothing on the notice to indicate the time of the accident, however. And the date of the accident is a critical component of the notice. Because the lien attaches II. only to a cause of action, judgment, or settlement based on the accident giving rise to the injuries treated by the hospital, Methodist raises four issues on appeal challenging the trial the date of the accident listed on the notice is crucial. See court's decision to render summary judgment against it. TEX. PROP.CODE ANN. § 55.003. It is by comparing the Because we conclude Methodist's third issue is dispositive of date and the name of the responsible party, if known, that one this appeal, we begin by addressing that issue. can determine whether the accident made the subject of the legal claims is the same as the accident made the subject of [1] It its third issue, Methodist contends its notice of the lien. There is nothing on Methodist's notice of lien that lien substantially complied with the requirements of section would enable someone searching the record to determine that 55.005(b). Section 55.005(b) states that a notice of lien filed the lien was intended to attach to the accident occurring on by a hospital or emergency medical services provider must an earlier date. contain: (1) the injured individual's name and address; (2) the date of the accident; (3) the name and location of the Methodist further argues that its listing of Ward as the liable hospital or emergency services provider claiming the lien; and party does not render the notice out of compliance with the (4) the name of the person alleged to be liable for damages statute because the name of the liable party is not required. arising from the injury, if known. TEX. PROP.CODE ANN. The statute requires the name of the liable party only “if § 55.005(b) (Vernon 2007). As stated above, the notice of lien known.” See id. § 55.005(b)(4). Having undertaken to name filed by Methodist incorrectly stated the date of the accident the liable party, however, it was incumbent upon Methodist and listed Ward, the injured person, as the person liable for to name the correct party. Indeed, by naming Ward as the the damages. liable party, the notice of lien appears unenforceable on its face. A hospital can impose a lien only on a cause of action [2] [3] Methodist first argues that, because a hospital or claim that an individual has for injuries “caused by an lien is statutorily created, substantial compliance with the accident attributed to the negligence of another person.” See notice requirements is all that is required for the lien to id. § 55.002(a) (emphasis added). By naming Ward as both be enforceable. See Citicorp Real Estate, Inc. v. Banque the injured party and the liable party, the notice appears to Arabe Internationale D' Investissement, 747 S.W.2d 926, 929 negate the element that the accident was attributed to the (Tex.App.-Dallas 1988, writ denied) (substantial compliance negligence of another person. all that is required for statutorily created judicial lien). Even assuming substantial compliance with the notice To adopt Methodist's argument that its notice of lien requirements is sufficient for a hospital lien to be enforceable, substantially complied with the requirements of section we conclude the notice at issue in this case did not 55.005 would vitiate the requirements of the statute. We substantially comply with the requirements of section conclude the trial court properly ruled Methodist's lien 55.005(b). “Substantial compliance” does not permit a party was unenforceable under section 55.005. Because of our to ignore statutory requirements. See Wesco Distribution, Inc. resolution of this issue, it is unnecessary for us to Methodist's v. Westport Group, Inc., 150 S.W.3d 553, 559 (Tex.App.- the other issues. Austin 2004, no pet.). Even if we liberally construe a statute to achieve its purposes, we may not enlarge or alter the plain We affirm the trial court's judgment. meaning of the statutory language. See Conn, Sherrod & Co. v. Tri–Electric Supply Co., 535 S.W.2d 31, 34 (Tex.Civ.App.- Tyler 1976, writ ref'd n.r.e.). All Citations

[4] Taken together, the errors made by Methodist in its 259 S.W.3d 358 notice of lien render the lien unenforceable. Of the four

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)

Footnotes 1 Methodist later dismissed its claims against Hernandez.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Nall v. Plunkett, 404 S.W.3d 552 (2013) 56 Tex. Sup. Ct. J. 818

of action against the Nalls for negligence based on an undertaking theory and for premises liability. The Nalls 404 S.W.3d 552 moved for summary judgment as to Plunkett's negligence Supreme Court of Texas. claim on the ground that they owed no duty to Plunkett Justin Curtis NALL, Robert W. under the facts pled in his petition. The trial court rendered Nall, and Olga L. Nall, Petitioners, judgment in favor of the Nalls as to “all issues except those v. relating to premises liability.” Plunkett appealed, arguing that summary judgment was improper because the Nalls' summary John B. PLUNKETT, Respondent. judgment motion addressed only social host liability and No. 12–0627. | June 28, 2013. not the negligent-undertaking theory. The court of appeals agreed and reversed the summary judgment. 374 S.W.3d 584, Synopsis 586–87. We hold that the Nalls' summary judgment motion Background: Guest at New Year's Eve party brought specifically addressed the negligent-undertaking claim by negligence action against hosts and driver relating to personal arguing that our decision in Graff v. Beard, 858 S.W.2d 918, injuries he sustained when he attempted to prevent the 921 (Tex.1993), forecloses the assumption of any duty by a driver from driving intoxicated after leaving the party. The social host under the facts of this case. Because Plunkett did District Court, Fort Bend County, Brady G. Elliott, J., granted not argue that summary judgment was improper on the merits, summary judgment in favor of hosts. Guest appealed. The we do not reach any substantive issues related to the summary Court of Appeals, Charles W. Seymore, J., 374 S.W.3d 584, judgment. See TEX.R.APP. P. 53.4. Accordingly, we reverse reversed and remanded. Hosts sought review which was the court of appeals' judgment and reinstate the trial court's granted. judgment.

Plunkett attended Justin Nall's New Year's Eve party at a home that is owned by his parents, Robert and Olga Nall. [Holding:] The Supreme Court held that summary judgment Plunkett alleges that the Nalls hosted the party and, knowing motion specifically addressed the negligent-undertaking that alcohol would be consumed at the house, required all claim as required for Court of Appeals to affirm summary attendees who remained at the house after midnight to spend judgment on that basis. the night. Plunkett contends that the Nalls failed to confiscate car keys of those who remained after midnight or take any Reversed. other actions to keep attendees from leaving. The petition states that Robert and Olga went to bed after midnight but before 2:00 a.m., without ensuring that those still in Attorneys and Law Firms attendance would remain until they were safe to drive. Shortly after 2:00 a.m., Kowrach and a friend attempted to leave *553 David Hill Bradley, Walters Balido & Crain, L.L.P., in the friend's vehicle. Plunkett alleges that he attempted to Houston, TX, Gregory R. Ave, Jason L. Wren, Walters, convince Kowrach not to leave, as they were both intoxicated. Balido & Crain, L.L.P., Dallas, TX, for Petitioner Justin As Plunkett stood on the running board of the vehicle and Curtis Nall. attempted to pull the keys from the ignition, Kowrach pressed Charles H. Peckham, Mary Abbott Martin, Peckham PLLC, the accelerator, gathered speed, then hit the brakes. The Jon M. Stautberg, Attorney at Law, Houston, TX, for sudden braking and Plunkett's momentum propelled him head Respondent John B. Plunkett. first into the ground, lodging his head under a parked car. Plunkett suffered traumatic brain damage as a result of his Opinion injuries and will require medical care for the rest of his life.

*554 PER CURIAM. Plunkett sued the Nalls and Kowrach. Plunkett alleged that the Nalls were liable for “common law negligence,” “fail[ing] This case presents an issue of summary judgment procedure. to exercise due care in their undertaking” to protect guests, John Plunkett sued Justin Nall, Robert Nall, Olga Nall, and for premises liability. The Nalls moved for summary and Justin Kowrach for personal injuries suffered at a New judgment, arguing that they owed no duty to Plunkett. The Year's Eve party at the Nalls' residence. Plunkett pled causes

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Nall v. Plunkett, 404 S.W.3d 552 (2013) 56 Tex. Sup. Ct. J. 818

trial court granted the motion as to all claims except for the from the pleadings any grounds for granting the summary premises liability claim, which Plunkett eventually nonsuited. judgment other than those grounds expressly set forth before The trial court then severed Plunkett's claims against the Nalls the trial court. McConnell, 858 S.W.2d at 343. from his claims against Kowrach. Plunkett appealed. The only issue briefed by Plunkett on appeal was whether the [4] [5] Like the court of appeals, we construe Plunkett's trial court erred by granting summary judgment on Plunkett's petition as alleging two causes of action against the undertaking claim based on the Nalls' alleged failure to Nalls: (1) “common law negligence” based on the Nalls' address that claim. failure to “exercise due care in their undertaking” (the negligent-undertaking claim), and (2) premises liability. The A divided court of appeals reversed and remanded, holding critical inquiry concerning the duty element of a negligent- that the trial court erred by granting summary judgment undertaking theory is whether a defendant acted in a way because the Nalls failed to address Plunkett's negligent- that requires the imposition of a duty where one otherwise undertaking theory in their motion. 374 S.W.3d at 586. would not exist. See Torrington Co. v. Stutzman, 46 S.W.3d The court of *555 appeals construed Plunkett's petition 829, 838–39 (Tex.2000); see also Osuna v. S. Pac. R.R., as alleging a claim for negligence based on an undertaking 641 S.W.2d 229, 230 (Tex.1982) (“Having undertaken to theory and the Nalls' summary judgment motion as arguing place a flashing light at the crossing for the purpose of only that summary judgment was proper as to a negligence warning travelers, the railroad was under a duty to keep claim based on social host liability. Id. at 586–87. the signal in good repair, even though the signal was not legally required.”). In Torrington, we held that a jury [1] [2] [3] This procedural issue was the only issue submission for a negligence claim predicated on a negligent- argued by Plunkett on appeal and the only issue addressed undertaking theory requires a broad-form negligence question by the court of appeals. See id. at 585. We review a grant accompanied by instructions detailing the essential elements of summary judgment de novo. Exxon Corp. v. Emerald Oil of an undertaking claim. Torrington, 46 S.W.3d at 838– & Gas Co., 331 S.W.3d 419, 422 (Tex.2010). In a summary 39. Accordingly, the broad-form submission for a typical judgment motion under Rule 166a(c) of the Texas Rules of negligence claim and a negligent-undertaking claim is the Civil Procedure, a movant “shall state the specific grounds same, except that an undertaking claim requires the trial therefor,” and a defendant who conclusively negates at least court to instruct the jury that a defendant is negligent only one of the essential elements of a cause of action is entitled if: (1) the defendant undertook to perform services that it to summary judgment. TEX. R. CIV. P. 166a(c). A trial knew or should have known were necessary for the plaintiff's court cannot grant summary judgment on grounds that were protection; (2) the defendant failed to exercise reasonable not presented. See, e.g., FDIC v. Lenk, 361 S.W.3d 602, care in performing *556 those services; and either (a) the 609 (Tex.2012); see also G & H Towing Co. v. Magee, plaintiff relied upon the defendant's performance, or (b) the 347 S.W.3d 293, 297 (Tex.2011) (per curiam) (“Granting a defendant's performance increased the plaintiff's risk of harm. summary judgment on a claim not addressed in the summary Id.; see also RESTATEMENT (SECOND) OF TORTS § judgment motion therefore is, as a general rule, reversible 324A (providing the rule for liability to a third person for error.”). “Issues not expressly presented to the trial court negligent performance of an undertaking). by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” TEX. R. [6] [7] The Nalls' summary judgment motion stated the CIV. P. 166a(c). We have also noted that “[a]n exception is issue addressed as: “Whether [the Nalls] have any duty to required should a non-movant wish to complain on appeal [Plunkett] in the factual scenario plead by [Plunkett].” The that the grounds relied on by the movant were unclear or Nalls' “short answer” was that “Texas does not recognize ambiguous.” McConnell v. Southside Indep. Sch. Dist., 858 social host liability, and [the Nalls] do not have any duty to S.W.2d 337, 342 (Tex.1993); see also D.R. Horton–Tex., Ltd. [Plunkett] in this case.” Plunkett did not file any exception to v. Markel Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex.2009) the Nalls' motion. The court of appeals construed the Nalls' (“A non-movant must present its objections to a summary motion as addressing Plunkett's negligence claim only as a judgment motion expressly by written answer or other written social-host liability claim and not as a negligent-undertaking response to the motion in the trial court or that objection is claim. 374 S.W.3d at 586. We construe the Nalls' motion, waived.”). However, even when a non-movant fails to except, however, as specifically moving for summary judgment on the court of appeals cannot “read between the lines” or infer the duty element of Plunkett's negligence claim, making a

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Nall v. Plunkett, 404 S.W.3d 552 (2013) 56 Tex. Sup. Ct. J. 818

of appeals erred by reversing the trial court's judgment on two-part argument that addressed the absence of a duty in both procedural grounds. the social host context and the undertaking context. First, the [8] Whether the Nalls were entitled to summary judgment Nalls correctly pointed out that, under Texas law, a host has based on the merits of the argument above is not at issue in no duty to prevent a guest who will be driving from becoming this appeal, and we do not address it. Texas Rule of Appellate intoxicated or to prevent an intoxicated guest from driving. 1 Procedure 53.4 provides that a party may obtain a remand See Graff, 858 S.W.2d at 918. Second, the Nalls addressed the to the court of appeals to address issues or points briefed in undertaking theory asserted by Plunkett in light of Graff. 2 that court but not decided by that court, or we may address Specifically, the Nalls argued: those issues in the interest of judicial economy. TEX.R.APP. P. 53.4. As we previously noted, Plunkett briefed only the procedural issue on appeal to the court of appeals. He did not [Plunkett] places a great amount of emphasis on the alleged argue that a genuine issue of material fact precluded summary “rule” of the Nall hosts that required a guest who was still at the home at midnight to spend the night. The court judgment on the merits. 3 We conclude that Plunkett waived in Graff v. Beard also discussed the scenario wherein a the issue of whether summary judgment was proper on the home owner attempts to assume that duty and the problems merits in this case by failing to brief it in the court of appeals. inherent in trying to decide scope of duty in that context. See id. Accordingly, we grant *557 the Nalls' petition for The Supreme Court refuses to recognize the assumption of review, and without hearing oral argument, we reverse the the duty argument in the case of a social host. court of appeals' judgment and reinstate the trial court's We hold that the Nalls' summary judgment motion judgment. See TEX.R.APP. P. 59.1. specifically addressed the negligent-undertaking claim by arguing that Graff forecloses the assumption of any duty All Citations (i.e., an undertaking) by a social host. Therefore, the court 404 S.W.3d 552, 56 Tex. Sup. Ct. J. 818

Footnotes 1 The portion of the Nalls' summary judgment motion that addressed this point was introduced by the following heading: “No statutory or common law duty is owed by a social host.” 2 The portion of the Nalls' summary judgment motion that addressed this point was introduced by the following heading: “Absent a legal right to restrain a guest, a host owes no duty to a guest to do so.” 3 Plunkett's brief at the court of appeals provided that the issue was a “legal one—sufficiency of pleadings to support a cause of action.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)

451 S.W.3d 133 Court of Appeals of Texas, OPINION Amarillo. Brian Quinn, Chief Justice Pak–a–Sak, Inc., Appellant This is an appeal from an order denying an application for v. a license to sell alcoholic *136 beverages at a Pak–a– City of Perryton, Appellee Sak convenience store location in the City of Perryton (the City). The denial was premised on a municipal ordinance No. 07–14–00047–CV | November 6, 2014 which prohibits the sale of alcohol within a “residential Synopsis area” of the City. Pak–a–Sak contends that 1) the ordinance Background: Convenience store petitioned for review of unconstitutionally grants authority to the City in excess of decision by city to deny its application for permit to sell that granted by the legislature under the Texas Alcoholic wine and beer. The County Court, Ochiltree County, affirmed Beverages Code, 2) the ordinance is unconstitutionally vague denial, and store appealed. The 84th District Court, Ochiltree and ambiguous, and 3) there is no substantial evidence to County, William D. Smith, J., affirmed. Store appealed. support a finding that Pak–a–Sak's location is in a residential area. We affirm.

On April 16, 2013, the City enacted Ordinance 1000– Holdings: The Court of Appeals, Brian Quinn, C.J., held that: 13 which states: “It shall be unlawful for any person to sell, dispense or deliver, or cause to be sold, dispensed [1] city did not exceed its statutory authority to enact or delivered, any beer, liquor, or any other intoxicating ordinance prohibiting sale of beer in residential area when it beverage within a residential area in the city.” 1 The enacted ordinance prohibiting sale, dispensation, or delivery ordinance was enacted under the authority of § 109.32 of of any alcoholic beverage within residential area in city; the Texas Alcoholic Beverage Code which provides that an incorporated city may prohibit the sale of beer in a [2] ordinance was not unconstitutionally vague; and residential area. TEX. ALCO. BEV.CODE ANN.. § 109.32 (West 2007). Neither the statute nor the ordinance define [3] substantial evidence supported finding that convenience the phrase “residential area.” On June 3, 2013, Pak–a–Sak store was located within residential area. submitted an Application for Wine and Beer Retailer's Off– Premises Permit (BQ license) to the City for its store at 522 Affirmed. SW 9th Avenue in Perryton. 2 The application was denied. That decision was appealed to the county court which upheld it. It was then appealed to the district court which did the *135 On Appeal from the 84th District Court, Ochiltree same. County, Texas, Trial Court No. CV–13743, Honorable William D. Smith, Presiding Ultra Vires Attorneys and Law Firms [1] As previously mentioned, Pak–a–Sak initially contends that the City exceeded legislative authorization by failing to Benjamin Doyle, Gavin Gadberry, Underwood Law Firm, define “residential area.” That is, “[b]y failing to objectively P.C., Amarillo, for Appellant. define ‘residential area,’ the City [allegedly] acted outside the Angelique S. Weaver, Kristi R. Weaber, Mayfield Law Firm, scope of its authority.” Appellant continues by arguing that Amarillo, for Appellee. the “Texas Legislature did not provide municipalities with unlimited authority to determine when its actors may prohibit Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. the sale of alcohol ... once a county has voted under a Local Option Election to allow the sale of alcohol, the municipality may only limit the sale in certain circumstances ... [which]

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)

circumstances are outlined in the Texas Alcoholic Beverages as to leave a governing body free to decide, without any Code.” legally fixed guidelines, what is prohibited in each particular case. Lindig v. City of Johnson City, No. 03–11–00660–CV, The circumstance alluded to is specified in § 109.32 and 2012 WL 5834855, at *3, 2012 Tex.App. LEXIS 9563, at *12 states that “[a]n incorporated city or town by charter or (Tex.App.—Austin November 14, 2012, no pet.) (mem.op.). ordinance may ... prohibit the sale of beer in a residential If persons of common intelligence are compelled to guess at area.” TEX. ALCO. BEV.CODE ANN.. § 109.32(a)(1) its meaning and applicability, then principles of due process (West 2007) (Emphasis added). The portion of the ordinance will not let it stand. Id. at *3–4, 2012 Tex.App. LEXIS 9563, adopted by the City and attacked at bar reads: “[i]t shall at *12–13. be unlawful for any person to sell, dispense or deliver, or cause to be sold, dispensed or delivered, any beer, liquor, or [7] [8] [9] [10] Yet, it should be remembered that any other intoxicating beverage within a residential area in statutes deal with “untold and unforeseen variations in factual the city.” (Emphasis added). As can be seen, the limitation situations, and the practical necessities of discharging the mentioned in the statute is identical to that specified in the business of government inevitably limit the specificity with ordinance. Moreover, and contrary to the insinuation of Pak– which legislators can spell out prohibitions.” Pennington v. a–Sak, § 109.32 does not direct the municipality to further Singleton, 606 S.W.2d 682, 689 (Tex.1980). Thus, no more define the phrase “residential area.” Nor did appellant cite than a reasonable degree of certainty can be demanded. Id.; us to authority expressly imposing such an obligation on the Vista Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d City. Given that the ordinance simply reiterated the limitation 264, 273 (Tex.App.—Austin 2010, pet. denied). Nor do the specified by the statute, we cannot say that the City acted words of a statute fall short of providing a reasonable degree outside the scope of its authority by enacting the ordinance. of certainty because they are undefined. Vista Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d at 273 (stating that a “law is not unconstitutionally vague merely because it Void for Vagueness does not define words or phrases”). Nor does the existence [2] Next, we address Pak–a–Sak's constitutional complaint. of a dispute as to a law's meaning necessarily render the It believes that the phrase “residential area” is ambiguous and provision unconstitutionally vague. Id. Again, the verbiage *137 susceptible to ad hoc interpretation and application. need only provide a reasonable degree of certainty as to what That purportedly being so, and because the City failed to is proscribed. And, the test “is relaxed” when the conduct provide guidelines explaining what it meant by or otherwise being regulated is not normally considered constitutionally define the phrase, the provision is impermissibly vague and, protected. See Hoffman Estates v. Flipside, Hoffman Estates, therefore, unconstitutional because it violates due process. 3 Inc., 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d We disagree. 362 (1982) (stating that “[t]he degree of vagueness that the Constitution tolerates—as well as the relative importance [3] [4] The same rules apply to the construction of of fair notice and fair enforcement—depends in part on ordinances as to the construction of statutes. Bd. of the nature of the enactment. Thus, economic regulation is Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 430 subject to a less strict vagueness test because its subject (Tex.2002); Mills v. Brown, 159 Tex. 110, 316 S.W.2d matter is often more narrow ....”); accord Commission for 720, 723 (1958). Furthermore, we generally presume that Lawyer Discipline v. Benton, 980 S.W.2d at 437–38 (stating an ordinance is valid, and the party challenging it has the that “[t]he vagueness doctrine requires different levels of burden to prove otherwise. Bd. of Adjustment of San Antonio clarity depending on the nature of the law in question. Courts v. Wende, 92 S.W.3d at 431; Brookside Village v. Comeau, demand less precision of statutes that impose only civil *138 633 S.W.2d 790, 792–93 (Tex.1982). penalties than of criminal statutes because their consequences are less severe.”). 4 [5] [6] Next, a statute or ordinance is unconstitutionally vague if it fails to give fair notice of what conduct [11] [12] We also mention that this requirement for a may be punished or it invites arbitrary and discriminatory reasonable degree of certainty can be provided through enforcement by failing to establish guidelines. Commission the use of ordinary terms having adequate interpretation in for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 common usage and understanding. Lindig v. City of Johnson (Tex.1998). That is, it may not be so vague and standardless City, 2012 WL 5834855, at *4, 2012 Tex.App. LEXIS 9563,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)

at *13 (stating that “the reasonable-certainty requirement live. Indeed, it has been defined as a location “containing ‘does not preclude the use of ordinary terms to express mostly homes instead of stores [or] businesses,” “used as ideas which find adequate interpretation in common usage a place to live,” or “of or relating to the places where and understanding’ ”); Webster v. Signad, Inc., 682 S.W.2d people live.” See MERRIAM–WEBSTER DICTIONARY, 644, 647 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd http://merriam-webster.com (last visited Nov. 6, 2014). In n.r.e). Simply put, where the statute fails to define pivotal turn, “area” describes, in common parlance, “a part or words contained therein, reference to their common usage and section within a larger place.” Id. When those definitions are understanding can supply the requisite certainty. combined in the context *139 of the statute and ordinance at issue, it is quite reasonable to construe the phrase “residential [13] [14] [15] [16] Also of note is that a law is notarea” to encompass, at the very least, a section of the city automatically vague merely because difficulty is experienced wherein people primarily maintain homes and live. Stated in determining whether certain marginal conduct falls within differently, it is reasonably certain that what constitutes a its scope. Pennington v. Singleton, 606 S.W.2d at 689. This “residential area” includes a neighborhood wherein people is of import because in assessing whether a statute is void primarily live and maintain homes. Admittedly, the margins for vagueness when First Amendment freedoms are not of the phrase may be difficult to determine. Whether they implicated, we examine the matter “ ‘in light of the facts of would encompass an industrial region wherein one or two the case at hand.’ ” Hoffman Estates v. Flipside, Hoffman people maintain a house is subject to reasonable debate. But, Estates, Inc., 455 U.S. at 495 n. 7, 102 S.Ct. 1186. In again, we are to analyze the attack “ ‘in light of the facts of the such circumstances, a facial challenge has merit “only if the case at hand.’ ” And, the “facts at hand” do not depict such enactment is impermissibly vague in all of its applications.” an area. Id. at 494–95, 102 S.Ct. 1186; accord In re Commitment of Fisher, 164 S.W.3d 637, 654–55 (Tex.2005) (stating that Instead, the record shows that the Pak–a–Sak store in question to “prevail on his facial vagueness challenge ... [one] bears is surrounded by houses and people living in them. One need the heavy burden of showing that the Act is unconstitutional only look at the pictures of the location and its neighbors in every possible application”). A complainant who engages to see that. While some businesses (e.g., a beauty parlor, a in some conduct that is clearly proscribed “cannot complain dog grooming business, and an auto mechanic shop) may be of the vagueness of the law as applied to the conduct of operated within various of those homes, people still primarily others.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., live within the neighboring environs of that Pak–a–Sak. 5 455 U.S. at 495, 102 S.Ct. 1186. “A court should therefore Given this, we have before us a circumstance encompassed by examine the complainant's conduct before analyzing the other a reasonable interpretation of what constitutes a “residential hypothetical applications of the law.” Id. area.” Selling beer from the Pak–a–Sak here would be conduct clearly proscribed by the ordinance; it would be Here, the trial court determined that the term “residential conduct clearly within the common meaning of “residential area” had a “definite meaning that is objectively determinable area,” that is, a section of the City wherein people primarily in its application.” Indeed, this conclusion appears supported maintain homes and live. So, we cannot say that the ordinance by various definitions of the term proffered by the City's has been shown to be vague in all of its applications as witnesses. For instance, the mayor testified it is a “geographic required, and we overrule the issue before us given the area of houses in which people live” or a “geographic area particular circumstances at bar. consisting primarily of homes where people live.” A city council member testified that a residential area is “anywhere there was a grouping of houses” or a “geographic area Substantial Evidence primarily occupied by houses.” The city manager defined it [17] Finally, Pak–a–Sak argues that “the City was required to as an “area where people reside” or an area that “primarily establish by substantial evidence that the location in question consists of houses” regardless of use. Common in each is the met the requirements of the regulation it intended to enforce” notion that the area must generally consist of abodes wherein and that it “did not meet their burden of admitting substantial people live. evidence of Pak–a–Sak's location being within a ‘residential area.’ ” We overrule this issue as well. To the foregoing, we add that the common meaning of the term “residential” describes a location at which people

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)

[18] A decision has the support of substantial evidence when As we observed in our discussion of the issue immediately the evidence of record, viewed as a whole, is such that preceding this one, the record contains more than a scintilla reasonable minds could have reached the same conclusion. of evidence illustrating that Pak–a–Sak was located in a Texas Alcoholic Beverage Comm'n v. Sierra, 784 S.W.2d 359, “residential area.” Consequently, the decision by the City of 360 (Tex.1990); Melmat, Inc. v. Texas Alcoholic Beverage Perryton to deny the permit has the support of substantial Comm'n, 362 S.W.3d 211, 214 (Tex.App.—Dallas 2012, evidence. no pet.); accord Texas Alcoholic Beverage Comm'n v. I Gotcha, Inc., No. 07–05–0411–CV, 2006 WL 2095449, at *140 Having rejected each issue proffered by Pak–a–Sak, *2–3, 2006 Tex.App. LEXIS 6733, at *6–7 (Tex.App.— we affirm the order of the trial court. Amarillo July 28, 2006, pet. denied) (mem.op.) (stating that substantial evidence exists if the evidence is such that reasonable minds could have reached the same conclusion). All Citations And, the quantum of evidence need only be more than a scintilla. Texas Alcoholic Beverage Comm'n v. I Gotcha, Inc., 451 S.W.3d 133 2006 WL 2095449, at *2, 2006 Tex.App. LEXIS 6733, at *6.

Footnotes 1 There is no zoning in Perryton. 2 This occurred after a general election on May 11, 2013, in Ochiltree County permitting the sale of alcoholic beverages 3 Pak–a–Sak does not challenge § 109.32(a)(1) of the Beverage Code as unconstitutionally vague, only the ordinance. 4 Pak–a–Sak does not suggest that the opportunity to sell beer in Perryton, Texas, is of constitutional dimension. 5 At least one witness also described the neighborhood as primarily occupied by houses.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Perry v. S.N., 973 S.W.2d 301 (1998) 41 Tex. Sup. Ct. J. 1162

do so a misdemeanor. See TEX. FAM.CODE §§ 261.101(a), 261.109 (formerly TEX. FAM.CODE §§ 34.01, 34.07). The 973 S.W.2d 301 trial court granted summary judgment for defendants, but the Supreme Court of Texas. court of appeals reversed and remanded plaintiffs' negligence Douglas Wayne PERRY, Janise White, per se and gross negligence claims for trial. Nash v. Perry, and Raul Quintero, Petitioners, 944 S.W.2d 728 (Tex.App.—Austin 1997). We reverse the v. judgment of the court of appeals and render judgment that plaintiffs take nothing. Because plaintiffs did not preserve S.N. and S.N., individually and a/n/f of B.N., a their common law negligence claims, we do not decide minor, and a/n/f of K.N., a minor, Respondents. whether there should be a common law duty to report child No. 97–0573. | Argued Jan. abuse in some circumstances. 7, 1998. | Decided July 3, 1998. B.N. and K.N. attended a day care center operated by Francis Parents, individually and as next friends of their children, Keller and her husband Daniel Keller from March 25, 1991, brought negligence action against friends of day care to August 28, 1991. Their parents, S.N. and S.N., allege that providers for failing to report child abuse they allegedly during that period, Daniel Keller regularly abused B.N. and witnessed at day-care center. The 53rd Judicial District Court, K.N. and other children at the center both physically and Travis County, Paul R. Davis, Jr., J., granted friends' motion sexually. Mr. and Mrs. N. brought suit against the Kellers and for summary judgment, and parents appealed. The Austin three of the Kellers' friends, Douglas Perry, Janise White, and Court of Appeals, 944 S.W.2d 728, reversed and remanded, Raul Quintero. Plaintiffs claim that Francis Keller confided and friends petitioned for writ of error. The Supreme Court, in White at an unspecified time that Daniel Keller had Phillips, C.J., held that violation of child abuse reporting “abusive habits toward children.” They further allege that statute was not negligence per se. on one occasion in August 1991, while visiting the Kellers, defendants Perry, White, and Quintero all saw Daniel Keller Reversed and rendered. bring a number of children out of the day care center into the Kellers' adjoining home and sexually *303 abuse them. The record does not indicate whether B.N. and K.N. were Attorneys and Law Firms among these children. According to plaintiffs, Perry, White, and Quintero did not attempt to stop Daniel Keller from *302 Gary E. Zausmer, Jeffrey Jury, Tom Tourtellotte, abusing the children or report his crimes to the police or child Austin, for Petitioners. welfare authorities. Greg Reed, Lionel J. Roach, Austin, for Respondents. [1] Plaintiffs' brief filed in this Court alleges additional facts Opinion that were not contained in their trial court pleadings. They now assert that Perry pleaded guilty to indecency with a PHILLIPS, Chief Justice, delivered the opinion of the Court. child by contact and that White and Quintero were indicted but not prosecuted for sex offenses involving the children at Respondents' motion for rehearing is overruled. Our opinion the day care center. Plaintiffs' trial court petition, however, of May 8, 1998, is withdrawn and the following is substituted did not allege that Perry, White, or Quintero participated in in its place. abusing B.N. and K.N. or other children. We may not consider factual assertions that appear solely in the appellate briefs and This is a suit for injuries arising out of the abuse of children not before the trial court. See Estate of Arrington v. Fields, at a day care center. Plaintiffs filed suit individually and as 578 S.W.2d 173, 183 (Tex.Civ.App.—Tyler 1979, writ ref'd next friends of their two children, alleging that defendants n.r.e.). witnessed the abuse and failed to report it to the police or child welfare officials. The sole issue before us is whether Instead, Mr. and Mrs. N. alleged only that Perry, White, and plaintiffs may maintain a cause of action for negligence per Quintero were negligent per se because they violated a statute se based on the Family Code, which requires any person requiring any person who “has cause to believe that a child's having cause to believe a child is being abused to report the physical or mental health or welfare has been or may be abuse to state authorities and makes the knowing failure to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Perry v. S.N., 973 S.W.2d 301 (1998) 41 Tex. Sup. Ct. J. 1162

adversely affected by abuse” to file a report with the police them on common law negligence. Therefore, the question of or the Department of Protective and Regulatory Services. whether Texas should impose a new common law duty to TEX. FAM.CODE § 261.109(a). Plaintiffs also asserted report child abuse on the facts of this case is not before us. See gross negligence and common law negligence claims. They generally Golden Spread Council, Inc. v. Akins, 926 S.W.2d claimed that Perry, White, and Quintero's failure to report 287, 291–92 (Tex.1996); Butcher v. Scott, 906 S.W.2d 14, the abuse proximately caused them harm by permitting the 15–16 (Tex.1995) (both refusing to recognize a common law day care center to remain open, thus enabling Daniel Keller duty to report abuse under the circumstances of those cases); to continue abusing the children at the center. They sought Greater Houston *304 Transp. Co. v. Phillips, 801 S.W.2d damages for pain, mental anguish, and medical expenses, as 523, 525 (Tex.1990) (setting out factors for deciding whether well as loss of income when they could not work outside the a common law duty should exist). We granted defendants' home because of B.N. and K.N.'s injuries. application for writ of error to resolve the conflict between the court of appeals' decision remanding the negligence per [2] [3] Perry, White, and Quintero moved for summary se claims for trial and the decisions of three other courts judgment on the sole ground that plaintiffs failed to state a of appeals declining to permit tort liability for violation of cause of action. None of the parties presented any summary the statutory child abuse reporting requirement. See Marshall judgment evidence. A court may not grant summary judgment v. First Baptist Church, 949 S.W.2d 504, 508 (Tex.App.— for failure to state a cause of action without first giving the Houston [14th Dist.] 1997, no writ); Childers v. A.S., 909 plaintiff an opportunity to amend the pleadings. See Pietila S.W.2d 282, 289–90 (Tex.App.—Fort Worth 1995, no writ); v. Crites, 851 S.W.2d 185, 186 n. 2 (Tex.1993). Before any Scott v. Butcher, 906 S.W.2d 16, 20–21 (Tex.App.—Tyler defendant moved for summary judgment, however, White 1994), rev'd on other grounds, 906 S.W.2d 14 (Tex.1995). 1 filed special exceptions arguing that plaintiffs had not stated a cause of action, and plaintiffs subsequently amended their [6] “It is fundamental that the existence of a legally petition. Although it appears from the record that Perry and cognizable duty is a prerequisite to all tort liability.” Graff v. Quintero did not file special exceptions, their motions for Beard, 858 S.W.2d 918, 919 (Tex.1993). The court of appeals summary judgment were based solely on the grounds argued found a duty in the following mandatory child abuse reporting in White's special exceptions. Thus, Mr. and Mrs. N. had a provisions of the Texas Family Code: fair opportunity to correct any deficiency in their pleadings. A person having cause to believe that [4] [5] The trial court granted Perry, White, and Quintero's a child's physical or mental health or motions for summary judgment and severed plaintiffs' claims welfare has been adversely affected by against those three defendants from their suit against the abuse or neglect by any person shall Kellers, which is not before us. Because defendants' motions immediately make a report as provided for summary judgment argued only that plaintiffs failed to by this subchapter. state a cognizable claim, the trial court's judgment can be upheld, if at all, only on that ground. See McConnell v. TEX. FAM.CODE § 261.101(a). 2 Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). When the ground for the trial court's decision is that plaintiffs failed to state a cause of action, we must take the allegations (a) A person commits an offense if the person has cause to in the pleadings as true in determining whether a cause of believe that a child's physical or mental health or welfare action exists. See El Chico Corp. v. Poole, 732 S.W.2d 306, has been or may be adversely affected by abuse or neglect 309 (Tex.1987). and knowingly fails to report as provided in this chapter.

(b) An offense under this section is a Class B The court of appeals affirmed the summary judgment on misdemeanor. plaintiffs' common law negligence claims but reversed and remanded for trial on the issues of negligence per se and gross Id. § 261.109. 3 The court concluded that these provisions negligence, holding that a violation of the Family Code's create a “statutory duty” to report child abuse, and that a child abuse reporting requirement is negligence per se. 944 violation of this duty is negligence per se. See 944 S.W.2d S.W.2d 728. Mr. and Mrs. N. have not appealed the court of at 730. appeals' judgment affirming the summary judgment against

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Perry v. S.N., 973 S.W.2d 301 (1998) 41 Tex. Sup. Ct. J. 1162

[7] All persons have a duty to obey the criminal law in OF TORTS §§ 286, 288. Texas's first mandatory child abuse the sense that they may be prosecuted for not doing so, but reporting statute, from which Family Code section 261.101(a) this is not equivalent to a duty in tort. See, e.g., Smith v. is derived, stated that “[t]he purpose of this Act is to protect Merritt, 940 S.W.2d 602, 607–08 (Tex.1997) (statute making children who [ ] ... are adversely affected by abuse or neglect.” it a crime to furnish alcohol to persons under age 21 did not Act of May 24, 1971, 62d Leg., R.S., ch. 902, § 1, 1971 impose a tort duty on social hosts). “It is well-established that Tex. Gen. Laws 2790. Similarly, the current Family Code the mere fact that the Legislature adopts a criminal statute provision governing the investigation of reports of child abuse does not mean that this court must accept it as a standard states that “[t]he primary purpose of the investigation shall be for civil liability.” Carter v. William Sommerville & Son, the protection of the child.” TEX. FAM.CODE § 261.301(d). Inc., 584 S.W.2d 274, 278 (Tex.1979). “The considerations which warrant imposing tort liability are not identical with [10] B.N. and K.N. are within the class of persons whom those which warrant criminal conviction,” Morris, The Role the child abuse reporting statute was meant to protect, and of Criminal Statutes in Negligence Actions, 49 COLUM. they suffered the kind of injury that the Legislature intended L.REV.. 21, 22–23 (1949), and we will not apply the doctrine the statute to prevent. 5 But this does not end our inquiry. of negligence per se if the criminal statute does not provide See Praesel v. Johnson, 967 S.W.2d 391, 395 (Tex.1998). an appropriate basis for civil liability. 4 See *305 Smith, The Court must still determine whether it is appropriate to 940 S.W.2d at 607; Rudes v. Gottschalk, 159 Tex. 552, 324 impose tort liability for violations of the statute. See Smith, S.W.2d 201, 204–05 (1959); Phoenix Refining Co. v. Powell, 940 S.W.2d at 607–08. This determination is informed by a 251 S.W.2d 892, 896 (Tex.Civ.App.—San Antonio 1952, number of factors, some discussed by the court of appeals writ ref'd n.r.e.). in this case and others derived from past negligence per se decisions of Texas courts and from scholarly analyses. *306 [8] Before we begin our analysis of whether section 261.109 These factors are not necessarily exclusive, nor is the issue of the Family Code is an appropriate basis for tort liability, properly resolved by merely counting how many factors lean we emphasize that we must look beyond the facts of this each way. Rather, we set out these considerations as guides to particular case to consider the full reach of the statute. We assist a court in answering the ultimate question of whether do not decide today whether a statute criminalizing only the imposing tort liability for violations of a criminal statute is type of egregious behavior with which these defendants are fair, workable, and wise. charged—the failure of eyewitnesses to report the sexual molestation of preschool children—would be an appropriate [11] We first consider the fact that, absent a change in the basis for a tort action. That is not the statute the Legislature common law, a negligence per se cause of action against passed. Rather, the issue before us is whether it is appropriate these defendants would derive the element of duty solely from to impose tort liability on any and every person who the Family Code. At common law there is generally no duty “has cause to believe that a child's physical or mental to protect another from the criminal acts of a third party or health or welfare has been or may be adversely affected to come to the aid of another in distress. See Butcher, 906 by abuse or neglect and knowingly fails to report.” TEX. S.W.2d at 15; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, FAM.CODE § 261.109(a). Cf. Leonard, The Application of 309 (Tex.1983). Although there are exceptions to this no-duty Criminal Legislation to Negligence Cases: A Reexamination, rule, see, e.g., Lefmark Management Co. v. Old, 946 S.W.2d 23 SANTA CLARA L.REV. 427, 457–66 (1983) (contrasting 52, 53 (Tex.1997) (noting that under some circumstances, the rigidity of statutory standards with the flexibility of case- person in control of premises has duty to protect invitees from by-case common law determinations of duty and breach). crime), this case does not fall within any of the established exceptions, and Mr. and Mrs. N. have not asked this Court [9] The threshold questions in every negligence per se case to impose on persons who are aware of child abuse a new are whether the plaintiff belongs to the class that the statute common law duty to report it or take other protective action. was intended to protect and whether the plaintiff's injury is of a type that the statute was designed to prevent. See Moughon [12] In contrast, the defendant in most negligence per se v. Wolf, 576 S.W.2d 603, 604 (Tex.1978); East Tex. Motor cases already owes the plaintiff a pre-existing common law Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 615 duty to act as a reasonably prudent person, so that the statute's (1949); Missouri, K & T. Ry. v. Saunders, 101 Tex. 255, role is merely to define more precisely what conduct breaches 106 S.W. 321, 321–23 (1908); RESTATEMENT (SECOND) that duty. See Rudes, 324 S.W.2d at 204 (“We adopt the

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statutory test rather than that of the ordinarily prudent man as KEETON ET AL. § 36, at 221 n. 9; Forell, The Statutory the more accurate one to determine negligence ....”); see also Duty Action in Tort: A Statutory/Common Law Hybrid, 23 Moughon, 576 S.W.2d at 604; RESTATEMENT (SECOND) IND. L.REV. 781, 782 (1990). While our definition has never OF TORTS § 286 (1965) (both defining negligence per been so restrictive, this Court in fact *307 has created a new se as the judicial adoption of a statute to define the duty by applying negligence per se on only one occasion. standard of conduct of a reasonable person). For example, In Nixon v. Mr. Property Management Co., 690 S.W.2d the overwhelming majority of this Court's negligence per se 546, 549 (Tex.1985), a third party dragged the plaintiff into cases have involved violations of traffic statutes by drivers an unlocked vacant apartment owned by the defendant and and train operators—actors who already owed a common raped her. Because the plaintiff was a trespasser according law duty to exercise reasonable care toward others on the to traditional premises liability categories, the defendant road or track. See, e.g., Murray v. O & A Express, Inc., landowner owed her no common law duty. See id. at 548. 630 S.W.2d 633 (Tex.1982); Impson v. Structural Metals, Although two members of this Court would have recognized a Inc., 487 S.W.2d 694 (Tex.1972); Missouri–Kansas–Texas new common law duty of reasonable care toward trespassers, R.R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956); at least in certain cases, see id. at 551–54 (Kilgarlin, J., Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982 concurring); id. at 554 (Spears, J., concurring), a plurality (1941); Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039 instead found a duty only in a city ordinance requiring (1936); Lancaster & Wight v. Allen, 110 Tex. 213, 217 S.W. landowners to keep vacant buildings locked. See id. at 549. 1032 (1920); Missouri, K & T. Ry. Co. v. Saunders, 101 Tex. But in our next major negligence per se case, El Chico Corp. 255, 106 S.W. 321 (1908); San Antonio & A.P. Ry. Co. v. v. Poole, we returned to the norm of deriving duty from the Bowles, 88 Tex. 634, 32 S.W. 880 (1895). common law and looking to the statute only for the standard of conduct. Only after we created a new common law duty not to When a statute criminalizes conduct that is also governed by sell alcohol to intoxicated persons, see El Chico, 732 S.W.2d a common law duty, as in the case of a traffic regulation, at 309–12, did we adopt a relevant section of the Alcoholic applying negligence per se causes no great change in the Beverage Code as “the attendant standard of conduct.” Id. law because violating the statutory standard of conduct at 312–13. Thus, based on both this Court's past practice would usually also be negligence under a common law and the observations of noted scholars, we conclude that the reasonableness standard. See Praesel, 967 S.W.2d at 395; absence of a relevant common law duty should be considered Parrott v. Garcia, 436 S.W.2d 897, 900 (Tex.1969); Rudes, in deciding whether to apply negligence per se to the Family 324 S.W.2d at 204; Morris, The Role of Criminal Statutes Code's reporting provision. in Negligence Actions, 49 COLUM. L.REV.. 21, 34 (1949). But recognizing a new, purely statutory duty “can have an The court of appeals in this case listed several factors to extreme effect upon the common law of negligence” when it consider in deciding whether to apply negligence per se. See allows a cause of action where the common law would not. 944 S.W.2d at 730 (citing Ratliff, Comment, Negligence Per See Leonard, 23 SANTA CLARA L.REV. at 449 n. 92. In Se in Texas, 41 TEX. L.REV. 104, 106 (1962)). According to such a situation, applying negligence per se “bring[s] into the court of appeals, the principal factors favoring negligence existence a new type of tort liability.” Burnette v. Wahl, 284 per se are that the Legislature has determined that compliance Or. 705, 588 P.2d 1105, 1109 (1978). The change tends to with criminal statutes is practicable and desirable and that be especially great when, as here, the statute criminalizes criminal statutes give citizens notice of what conduct is inaction rather than action. See generally Otis Eng'g, 668 required of them. See id. As considerations against negligence S.W.2d at 309; 3 HARPER ET AL., THE LAW OF per se, the court of appeals cautioned that some penal statutes TORTS § 18.6 (2d ed.1986); KEETON ET AL., PROSSER may be too obscure to put the public on notice, may impose & KEETON ON THE LAW OF TORTS § 56, at 373–77 liability without fault, or may lead to ruinous monetary (5th ed.1984); Thayer, Public Wrong and Private Action, 27 liability for relatively minor offenses. See id. The first of HARV. L.REV.. 317 (1914) (all discussing traditional tort these factors is not helpful because it points the same way in law distinction between misfeasance and nonfeasance). every case: the very existence of a criminal statute implies a legislative judgment that its requirements are practicable and Some commentators contend that the term “negligence per desirable. The court of appeals' remaining factors, however, se” does not even apply when the statute on which civil are pertinent to our analysis. liability is based corresponds to no common law duty. See

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On the question of notice, this Court has held that one all of the other acts of abuse and neglect covered by the consideration bearing on whether to apply negligence per se is reporting requirement, see TEX. FAM.CODE § 261.001(1), whether the statute clearly defines the prohibited or required (4) (defining “abuse” and “neglect”), are also felonies. See conduct. See Praesel, 967 S.W.2d at 395; Carter, 584 TEX. PEN.CODE § 22.04 (injury to a child); id. § 22.041 S.W.2d at 278; RESTATEMENT (SECOND) OF TORTS § (abandoning or endangering child); id. § 22.011(a)(2), (f) 874A cmt. h(1). The Family Code's reporting requirement (statutory rape). Even the lowest level of felony is punishable is triggered when a person “has cause to believe that a by 180 days to two years in jail and a $10,000 fine, see id. child's physical or mental health or welfare has been or § 12.35, and automatically deprives the offender of certain may be adversely affected by abuse or neglect.” TEX. civil rights such as the franchise, see TEX. ELEC.CODE § FAM.CODE § 261.109(a). In this case, defendants allegedly 13.001(a)(4), eligibility for public office, see id. § 141.001(a) were eyewitnesses to sexual abuse. Under these facts, there (4), and the right to own a firearm, see TEX. PEN.CODE is no question that they had cause to believe abuse was § 46.04(a). By contrast, failure to report abuse or neglect, occurring, and thus that the statute required them to make a no matter how serious the underlying crime, is a class B report. In many other cases, however, a person may become misdemeanor punishable by no more than six months in jail aware of a possible case of child abuse only through second- and a $2,000 fine. See TEX. FAM.CODE § 261.109(b); TEX. hand reports or ambiguous physical symptoms, and it is PEN.CODE § 12.22. This evidence of legislative intent to unclear whether these circumstances are “cause to believe” penalize nonreporters far less severely than abusers weighs that such conduct “may be” taking place. 6 See Scott, 906 against holding a person who fails to report suspected abuse S.W.2d at 20. A statute that conditions the requirement to civilly liable for the enormous damages that the abuser report on these difficult judgment calls does not clearly subsequently inflicts. The specter of disproportionate liability define *308 what conduct is required in many conceivable is particularly troubling when, as in the case of the reporting statute, it is combined with the likelihood of “broad and situations. 7 wide-ranging liability” by collateral wrongdoers that we condemned in Carter v. William Sommerville & Son, Inc., 584 The next factor the court of appeals considered was whether S.W.2d at 279. applying negligence per se to the reporting statute would create liability without fault. See 944 S.W.2d at 730. We agree Finally, in addition to the factors discussed by the court of with the court of appeals that it would not, because the statute appeals, we have also looked to whether the injury resulted criminalizes only the “knowing[ ]” failure to report. 8 See directly or indirectly from the violation of the statute. See id.; see also El Chico, 732 S.W.2d at 313 (holding under a Praesel, 967 S.W.2d at 395. In Carter v. William Sommerville similarly worded statute that “a liquor licensee is negligent & Son, Inc., we refused to apply negligence per se liability as a matter of law under the statute when he knowingly sells to a provision of the Texas Motor Carrier Act making it a an alcoholic beverage to an intoxicated person” (emphasis misdemeanor to aid and abet any violation of the Act. See added)). This characteristic of the statute weighs in favor of Carter, 584 S.W.2d at 278–79. We concluded that the aiding imposing civil liability. and abetting section was “too far removed to be adopted as a standard” for civil liability, in part because “[i]t is only by Our next consideration is whether negligence per se would first finding a violation of some other section of the Act that impose ruinous liability disproportionate to the seriousness the court may then find a violation” of that *309 provision. of the defendant's conduct. In analyzing this factor, the court Carter, 584 S.W.2d at 279. Like the aiding and abetting of appeals treated child abuse as the relevant conduct. See provision in Carter, Family Code section 261.109 defines the 944 S.W.2d at 730 (“[T]he abuse of children has become misdemeanor of failure to report child abuse in terms of the notorious.”). The conduct criminalized by section 261.109, wrongful act of a third party. Under Carter 's reasoning, the however, is not child abuse but the failure to report child indirect relationship between violation of such a statute and abuse. Through its penal laws, the Legislature has expressed a the plaintiff's ultimate injury is a factor against imposing tort judgment that abuse and nonreporting deserve very different liability. legal consequences. The abuser in this case committed the offense of aggravated sexual assault on a child under the The lack of direct causation is not in itself dispositive; we age of fourteen, a first degree felony carrying a penalty have imposed civil liability for some statutory violations of five to ninety-nine years in prison and a fine of up to that caused the plaintiff's injury by facilitating the tort of $10,000. See TEX. PEN.CODE §§ 22.021, 12.32. Almost

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In summary, we have considered the following factors a third party. See El Chico, 732 S.W.2d at 312–13 (statute prohibiting sale of alcohol to intoxicated person); Nixon, regarding the application of negligence per se to the Family 690 S.W.2d at 548–49 (building ordinance requiring security Code's child abuse reporting provision: (1) whether the statute measures). But a reporting statute by definition places a fourth is the sole source of any tort duty from the defendant to party between the defendant and the plaintiff: the person or the plaintiff or merely supplies a standard of conduct for an agency to whom the defendant is required to make the report. existing common law duty; (2) whether the statute puts the Thus, the connection between the defendant's conduct and public on notice by clearly defining the required conduct; (3) the plaintiff's injury is significantly more attenuated in a case whether the statute would impose liability without fault; (4) based on failure to report than in Nixon or El Chico. We whether negligence per se would result in ruinous damages are not aware of any Texas case applying negligence per disproportionate to the seriousness of the statutory violation, se to a statute that, like the child abuse reporting provision, particularly if the liability would fall on a broad and wide interposes not one but two independent actors between the range of collateral wrongdoers; and (5) whether the plaintiff's plaintiff and the defendant. injury is a direct or indirect result of the violation of the statute. Because a decision to impose negligence per se could We conclude by noting that for a variety of reasons, not be limited to cases charging serious misconduct like including many of those we have discussed, most other the one at bar, but rather would impose immense potential states with mandatory reporting statutes similar to Texas's liability under an ill-defined standard on a broad class of have concluded that the failure to report child abuse is individuals whose relationship to the abuse was extremely not negligence per se. See C.B. v. Bobo, 659 So.2d 98, indirect, we hold that it is not appropriate to adopt Family 102 (Ala.1995); Fischer v. Metcalf, 543 So.2d 785, 790– Code section 261.109(a) as establishing a duty and standard 91 (Fla.Dist.Ct.App.1989); Cechman v. Travis, 202 Ga.App. of conduct in tort. Therefore, Mr. and Mrs. N. and their children may not maintain a claim for negligence per se or 255, 414 S.E.2d 282, 284 (1991); Borne v. Northwest gross negligence based on defendants' violation of the child Allen County Sch. Corp., 532 N.E.2d 1196, 1202–03 abuse reporting statute. Because plaintiffs did not appeal (Ind.Ct.App.1989); Kansas State Bank & Trust Co. v. Specialized Transp. Servs., Inc., 249 Kan. 348, 819 P.2d the court of appeals' adverse decision on their common law 587, 604 (1991); Valtakis v. Putnam, 504 N.W.2d 264, 266 negligence claims, we do not consider whether Texas should (Minn.Ct.App.1993); Bradley v. Ray, 904 S.W.2d 302, 312– impose a common law duty to report or prevent child abuse. 14 (Mo.Ct.App.1995); Marquay v. Eno, 139 N.H. 708, 662 A.2d 272, 276–78 (1995). But see Landeros v. Flood, 17 For the foregoing reasons, we reverse the judgment of the Cal.3d 399, 131 Cal.Rptr. 69, 551 P.2d 389, 396–97 (1976); court of appeals and render judgment that plaintiffs take Curran v. Walsh Jesuit High Sch., 99 Ohio App.3d 696, 651 nothing. N.E.2d 1028, 1030 (1995); Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 909 (Tenn.Ct.App.1992). All Citations

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Footnotes 1 This Court was unable to address the negligence per se issue in Butcher for jurisdictional reasons. See Butcher v. Scott, 906 S.W.2d 14, 16 (Tex.1995). This case thus presents our first opportunity to consider this question. 2 This mandatory reporting statute was enacted in 1971. See Act of May 24, 1971, 62d Leg., R.S., ch. 902, § 1, 1971 Tex. Gen. Laws 2790, 2791. Prior to that time, Texas did not require the reporting of child abuse, although there were statutes granting immunity from suit to doctors and other professionals who chose to report cases of suspected abuse. See Act of April 26, 1965, 59th Leg., R.S., ch. 117, 1965 Tex. Gen. Laws 277 (physicians); Act of May 5, 1969, 61st Leg., R.S., ch. 219, 1969 Tex. Gen. Laws 637 (other professionals). The version of this provision in force at the time of the events in this case read “has been or may be adversely affected.” See 944 S.W.2d at 729 (quoting former TEX. FAM.CODE § 34.01(a)) (emphasis added). The Legislature deleted the italicized language in 1997. See Act of Sept. 1, 1997, 75th Leg., R.S., ch. 1022, § 65, 1997 Tex. Gen. Laws 3733, 3760. However, the phrase “or may be” remains in the current version of § 261.109(a).

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3 This provision criminalizing the failure to report was added in 1973. See Act of May 17, 1973, 63d Leg., R.S., ch. 398, § 1, 1973 Tex. Gen. Laws 881. 4 At times, our opinions have included language suggesting that any statutory violation is automatically negligence per se. See, e.g., Southern Pac. Co. v. Castro, 493 S.W.2d 491, 497 (Tex.1973) (stating that to prove negligence per se, one must prove the unexcused violation of a penal standard). Yet these same opinions recognize the Restatement of Torts as the law of Texas on negligence per se, and the Restatement expressly states that the adoption of criminal statutes into tort law is a matter of judicial discretion: “The correct rule is ...: ‘The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of the reasonable man, is negligence in itself.’ ” Southern Pac., 493 S.W.2d at 497 (emphasis added)(quoting RESTATEMENT (SECOND) OF TORTS § 288B (1965)); see also RESTATEMENT (SECOND) OF TORTS § 286 (1965) (“The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment ....”) (emphasis added); id. cmt. d (“Since the legislation has not so provided, the court is under no compulsion to accept it as defining any standard of conduct for purposes of a tort action.”). 5 A few courts in other jurisdictions have interpreted mandatory reporting statutes as intended to protect only the specific child the defendant suspects is being abused, not other potential victims of the same abuser. See Curran v. Walsh Jesuit High School, 99 Ohio App.3d 696, 651 N.E.2d 1028, 1030–31 (1995); Marcelletti v. Bathani, 198 Mich.App. 655, 500 N.W.2d 124, 127 (1993). It is unclear from the pleadings whether B.N. and K.N. were among the children whom defendants saw being abused. But whether or not Curran and Marcelletti 's analysis applies to the Texas reporting statute, B.N. and K.N. are within the protected class on the facts of this case. According to the pleadings, defendants saw Daniel Keller take some of the children enrolled in the day care center out of the center into an adjoining room of the Kellers' home and sexually abuse them. This gave defendants “cause to believe” that the “physical or mental health or welfare” of all the children attending the day care center—not only the particular children they saw being abused on that occasion—“may be adversely affected by abuse or neglect.” See TEX. FAM.CODE § 261.109(a). Thus, the statute required defendants to make a report concerning all the children at the center. 6 Determining whether abuse is or may be occurring in a particular case is likely to be especially difficult for untrained laypersons. Texas is one of a minority of states that require any person who suspects child abuse to report it. See O'Brien & Flannery, The Pending Gauntlet to Free Exercise: Mandating that Clergy Report Child Abuse, 25 LOY. L.A. L.REV. . 1, 24–25 & n. 127 (1991) (collecting statutes). Most states place such a requirement only on professionals who may be expected to know more than the average person about recognizing child abuse and who have a professional relationship with and responsibility for children. See id. at 19 n. 106 (collecting statutes); id. at 24. The Texas Family Code contains a separate mandatory reporting provision, not relevant here, specifically directed to members of certain professions. See TEX. FAM.CODE § 261.101(b). 7 We do not mean to suggest that section 261.109 is unconstitutionally vague. In fact, one court of appeals has already rejected an as-applied vagueness challenge to this provision. See Morris v. State, 833 S.W.2d 624, 627 (Tex.App.— Houston [14th Dist.] 1992, pet. ref'd), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993). A statute's lack of clarity need not rise to a constitutionally suspect level in order to be a factor in our determination of whether imposing negligence per se is appropriate. 8 Although the issue of strict liability is related to the problem of notice, see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), a statute may require scienter and yet fail to define clearly the prohibited conduct. Cf. Long v. State, 931 S.W.2d 285, 289 (Tex.Crim.App.1996).

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215 S.W.3d 559 Court of Appeals of Texas, *561 OPINION Austin. DAVID PURYEAR, Justice. RAILROAD COMMISSION OF TEXAS and Our opinion and judgment issued on December 29, 2006, are Dos Republicas Resources Co., Inc., Appellants, withdrawn, and the following opinion is substituted. v. Theodosia COPPOCK, Juanita Alvarado, Dos Republicas Resources Co., Inc. (“Dos Republicas”) Guadalupe Davila, and Kickapoo asked the Railroad Commission of Texas (the “Commission”) Traditional Tribe of Texas, Appellees. to extend its surface coal mining permit under the provisions of the Texas Surface Coal Mining and Reclamation Act No. 03–05–00097–CV. | Feb. 1, 2007. codified in the natural resources code, but Theodosia Coppock, Juanita Alvarado, Guadalupe Davila, and Kickapoo Synopsis Traditional Tribe of Texas (the “appellees”) opposed the Background: Neighboring landowners appealed Railroad extension. Ultimately, the Commission granted the extension, Commission's decision to extend coal mining company's and the appellees appealed the Commission's decision. The surface coal mining permit. The 201st Judicial District Court, district court concluded that the Commission's basis for Travis County, Scott H. Jenkins, J., entered judgment for granting the extension, namely the lack of a market for landowners. Commission and company appealed. Dos Republicas to sell its coal, was not authorized under the natural resources code. See Tex. Nat. Res.Code Ann. § 134.072 (West 2001). Dos Republicas and the Commission Holdings: The Court of Appeals, David Puryear, J., held that: appeal the district court's judgment, and we will reverse the court's judgment. [1] Commission had the authority to grant company's request for a permit extension, even though three-year deadline had expired, and BACKGROUND

[2] company could obtain permit extension due to In 1992, Dos Republicas applied to the Commission for a unfavorable market conditions beyond the control of and permit to allow it to engage in coal mining on a 2700–acre without the fault or negligence of the company. tract in Eagle Pass, Texas, and the Commission approved the permit in 1994. However, Dos Republicas did not request that the permit be issued at that time. Reversed and remanded.

For years, Dos Republicas attempted to enter into an Attorneys and Law Firms agreement to sell its coal to the Comision Federal de Electricidad (“CFE”), a state-owned electricity provider in *560 Chesley N. Blevins, Rebecca L. Fink, Lloyd Gosselink Mexico that operates two coal-fired plants near Eagle Pass. Blevins Rochelle & Townsend, P.C., Nathan M. Bigbee, In 1999, CFE became concerned about the financial security Assistant Attorney General, Natural Resources Division, of the mining company that had been its coal supplier. As Austin, for appellants. a result, it alerted Dos Republicas that, in early 2000, it would be issuing a request for proposals asking companies Enrique Valdivia, Texas RioGrande Legal Aid, San Antonio, to submit bids offering to supply CFE with coal and asked David O. Frederick, Lowere & Frederick, John G. Soule, Dos Republicas to issue a bid. To ensure that it would Scott Douglass & McConnico, L.L.P., Austin, for appellees. have a supply when necessary, Dos Republicas asked the Commission to issue the permit it had previously approved, Before Justices PATTERSON, PURYEAR and SMITH. * and the Commission issued the permit in April 2000.

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Due to a number of political changes and pressure from opposed the extension. 3 She claimed that, because the various interested parties, CFE never issued its request for three-year deadline had passed by the time of the hearing, proposals. Employees from mines in Mexico complained that the Commission had no authority to grant an extension. importing coal from Texas might eliminate their jobs. In Alternatively, she argued that the Commission should addition, during this time, the governing political party in deny the extension because the conditions allowing for Mexico changed, and the leaders of CFE were replaced. an extension found in section 134.072 were not satisfied. Specifically, she asserted that the absence of a market in Dos Republicas continued its efforts to enter into an which Dos Republicas could sell its coal could not justify an agreement with CFE, and, in 2001, CFE again indicated extension. that it would issue a request for proposals. However, as had happened previously, no request was ever issued. Instead, The hearing examiner concluded that the Commission had CFE entered into a long-term supply contract with a Mexican jurisdiction to consider the request for an extension because mining company, Coahuila Industrial Minera (“Coahuila”). the request for an extension was filed prior to the three-year deadline. Further, she concluded that the Commission should Prior to and after CFE entered into a contract with Coahuila, grant the extension because Dos Republicas's failure to begin Dos Republicas unsuccessfully attempted to find other market mining was due to *563 the absence of a market for the options for selling its coal. Even though Dos Republicas coal and that the market condition was “beyond the control asked the Commission to issue it a mining permit, it never and without the fault or negligence” of Dos Republicas. The began mining coal at the Eagle Pass mine and, eventually, Commission adopted the examiner's proposal for decision and filed an application with the Commission seeking to terminate granted the extension. its permit. Although Dos Republicas asked that its permit be terminated, the natural resources code also contains an early The appellees appealed the Commission's order to the termination provision mandating that a mining permit will district court. See Tex. Gov't Code Ann. § 2001.171 (West expire within three years of *562 its issuance if the permit 2000) (person who has exhausted all administrative remedies holder has not begun “surface coal mining” operations by that and is aggrieved by final agency decision is entitled to date. Tex. Nat. Res.Code Ann. § 134.072(a); 1 see also id. § judicial review). In its judgment, the district court concluded 134.004(20) (West 2001) (definition of “surface coal mining that the Commission had jurisdiction over the extension operations”). Dos Republicas filed its application to terminate request because the Commission has authority over a its permit shortly before the three-year termination date. request as long as it is filed within three years of the permit's issuance. However, the court also concluded that Just before the three-year termination deadline passed, “[s]ubsection 134.072(b) does not authorize the Commission Coahuila contacted Dos Republicas and indicated that it was to grant an extension based upon the absence of a market or interested in purchasing the Eagle Pass mining operation. other economic, political, or social conditions that are beyond Consequently, Dos Republicas filed a request to withdraw its the control of and without the fault or negligence of the application to terminate the permit and also filed a request to permit holder.” Dos Republicas and the Commission appeal extend its permit beyond the three-year deadline. The natural the district court's judgment. resources code allows the Commission to grant “reasonable extensions” if it is shown that the extensions are necessary because of: STANDARD OF REVIEW (1) litigation that precludes the beginning of operations or In addressing the issues raised in this appeal by the threatens substantial economic loss to the permit holder; or appellants and the appellees, we must necessarily construe the (2) conditions beyond the control and without the fault or relevant provisions of the natural resources code. Statutory negligence of the permit holder. construction is a question of law, which we review de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). In Id. § 134.072(b). 2 determining the meaning of a statute, our primary purpose is to determine the legislature's intent when enacting the The Commission referred the matter to a hearings examiner. statute, and we begin with the language used in the statute. Id. Coppock, a landowner near the Eagle Pass property, Every word in a statute is presumed to have been used for a

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purpose and every word excluded is presumed to have been [1] On appeal, the appellees assert that the Commission excluded for a purpose. Laidlaw Waste Sys., Inc. v. City of lacked the authority to grant the permit extension because Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Further, we look the three-year deadline specified in the statute had expired. to the entire act and do not look at a single provision isolated Before we address this issue, we note that there is some from the remainder of the act. Watts v. City of Houston, question about whether the appellees may make this cross- 126 S.W.3d 97, 100 (Tex.App.-Houston [1st Dist.] 2003, no claim without first filing a notice of appeal. The Commission pet.); see also Tex. Gov't Code Ann. § 311.021(2) (West and Dos Republicas contend that the appellees may not 2005) (presume that entire statute was meant to be effective). bring this cross-claim on appeal because they failed to file We should not adopt a construction of a statute that will a notice of appeal. See Tex.R.App. P. 25.1 (party who seeks render the statute meaningless or lead to absurd results. See to alter trial court's judgment must file notice of appeal), Watts, 126 S.W.3d at 100; see also Tex. Gov't Code Ann. § 26.1 (specifying deadlines for filing notices of appeal). The 311.021(3) (West 2005) (in construing statutes, we presume appellees, on the other hand, insist that this issue may be that just and reasonable result was intended). Finally, the considered on appeal. Specifically, they assert that it was construction of a statute by the administrative agency charged unnecessary for them to file a notice of appeal because they with its enforcement is entitled to serious consideration so are not seeking more favorable relief than that granted by long as the construction is reasonable and does not contradict the district court. See First Gen. Realty Corp. v. Maryland the plain language of the statute. Tarrant Appraisal Dist. v. Cas. Co., 981 S.W.2d 495, 503 (Tex.App.-Austin 1998, pet. Moore, 845 S.W.2d 820, 823 (Tex.1993); Anderson–Clayton denied) (because appellees' arguments did not ask for relief Bros. Funeral Home, Inc. v. Strayhorn, 149 S.W.3d 166, greater than that granted by trial court, appellees were not 178 (Tex.App.-Austin 2004, pet. denied) (even if there are required to file notice of appeal). Rather, they argue that they other reasonable interpretations, we will accept agency's are simply seeking to affirm the final judgment of the district construction of statute if it is consistent with language court and that they raise this issue merely as an alternative and purpose of statute); see also Tex. Gov't Code Ann. § ground for affirming the district court's judgment. See Helton 311.023(6) (West 2005) (in construing statutes, courts may v. Railroad Comm'n, 126 S.W.3d 111, 119–20 (Tex.App.- consider administrative construction of statute regardless of Houston [1st Dist.] 2003, pet. denied) (noting distinction whether statute is considered ambiguous). This is particularly between cross-points that require separate notice of appeal true when the statute involves a complex subject matter. and claims that merely seek to raise alternate grounds Buddy Gregg Motor Homes v. Motor Vehicle Bd., 156 S.W.3d opposing recovery by appealing party). In the interests of 91, 99 (Tex.App.-Austin 2004, pet. denied). However, for justice, we will address their argument. nontechnical questions of law and other questions not lying within an agency's expertise, courts do not defer to an [2] The appellees insist that Dos Republicas's permit agency's interpretation. Id. terminated automatically on April 11, 2003, because Dos Republicas had not commenced surface mining and had not obtained an extension by that date. In support of this assertion, the appellees contend that nothing in the natural resources DISCUSSION code provides that requesting an extension within the three- On appeal, the Commission and Dos Republicas contend that year deadline will toll the termination deadline or allows for the district court erred when it reversed the Commission's a conditional extension pending a final determination by the *564 order granting Dos Republicas's extension because Commission. In response, the Commission argues that it may the extension was authorized by the natural resources code. grant an extension request after the three-year deadline as In response, the appellees assert that the extension was long as the request was filed within the three-year cutoff. not authorized by statute and that the Commission did not have the authority to grant the extension after the three-year The Commission's interpretation of the statute is consistent deadline. with the language of the statute. Nothing in the natural resources code necessitates that the Commission rule on an extension request before the three-year deadline passes in The Commission Possessed Authority to Address Dos order for the extension to be effective. See Tex. Nat. Res.Code Republicas's Extension Request Ann. § 134.072. The lack of a Commission deadline for issuing its decision is instructive given that the code provides

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specific deadlines for agency action in other contexts. For may not be opposed, hearings may or may not be scheduled example, section 134.080 of the code mandates that the on the proposed extension, and there is no statutory deadline Commission issue a decision regarding a permit revision filed for the Commission releasing its decision, this interpretation by a permit holder within 90 days of receiving the application would lead to unfair results. For example, under the appellees' for revision. See id. § 134.080 (West 2001); see also Tex. interpretation, a permit holder who files for an extension just Gov't Code Ann. § 2001.146(c) (West 2000) (agency must act prior to the termination deadline would receive an extension on motion for rehearing within 45 days or motion is overruled as long as the Commission issued the extension by the three- by operation of law). year deadline, whereas a permit holder who files a request for an extension well in advance of the deadline would not *565 Moreover, the code does not mandate that a permit receive an extension if the Commission is unable to grant holder file an extension request within a given time prior the extension by the cut-off date. 4 We cannot adopt an to the termination date in order to allow the Commission to interpretation that would lead to such arbitrary results. See fully consider the request. The lack of a specific deadline by Watts, 126 S.W.3d at 100. which a permit holder must file a request is noteworthy when looking at other code provisions. The section concerning This construction is also supported by the effect of the permit renewals explicitly provides a deadline by which an extension provisions. Cf. Tex. Gov't Code Ann. § 311.023(1) applicant must file a permit renewal application that is prior (West 2005) (in interpreting statute, courts may consider to the permit expiration date. Specifically, section 134.078 “object sought to be attained”). Section 134.072 terminates provides as follows: a permit, regardless of the length of the permit's effective term, within three years of the permit's issuance if the permit Application for permit renewal must holder has not begun mining operations. Tex. Nat. Res.Code be made not later than the 120th day Ann. § 134.072; see also id. § 134.071 (West 2001) (allowing before the date the existing permit Commission to issue permits with terms of five years or expires. more). Given that section 134.072 can shorten the effective Tex. Nat. Res.Code Ann. § 134.078 (West 2001); see also term of a mining permit by imposing a three-year deadline, 16 Tex. Admin. Code § 12.106(b)(2) (2006) (requiring *566 the Commission's interpretation that a request for an permit holder to file permit renewal 180 days before permit extension is effective if filed within the three-year deadline expires), (b)(3) (2006) (requiring permit holder to file permit seems logical and equitable. revision application 180 days before it expects to revise its operations). The absence of a similarly worded deadline in the For all the reasons previously given, we conclude that the extension context supports the Commission's interpretation, Commission's interpretation of the statute is consistent with which allows for the filing of an extension request up to the section 134.072 and further conclude that the Commission three-year termination deadline. See Laidlaw Waste Sys., Inc., had the authority to grant Dos Repulicas's extension request 904 S.W.2d at 659 (presume that every word omitted was even though the three-year termination date had passed. purposefully excluded). Accordingly, we affirm that portion of the district court's judgment. Furthermore, if the appellees' interpretation of the statute were correct, applicants would have the onerous task of The Statute Allows Extension Requests to be Granted estimating how far in advance they would need to file an for Market Reasons extension request in order to allow the Commission time [3] In their only issue on appeal, the Commission and Dos to fully review the application and issue its decision prior Republicas contend that the district court erred by reversing to the expiration of the three-year deadline. In addition, the Commission's order. Specifically, they argue that the the appellees' construction would effectively eliminate absence of a market for the coal present at the Eagle Pass extensions for events occurring between the time a permit mine was a condition outside of Dos Republicas's control that holder should file an extension request to ensure that a timely occurred “in the absence of any fault or negligence” on behalf decision is issued and the three-year termination date. Given of Dos Republicas and that, therefore, the Commission was that the possible reasons for requesting an extension might vary in complexity, the amount of time necessary for full authorized by statute to grant the extension. 5 consideration of a request will vary, the extension may or

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The appellees, on the other hand, contend that the district distinguishable. The appellees refer to Day v. Tenneco, Inc., court correctly concluded that the Commission was not 696 F.Supp. 233 (S.D.Miss.1988); Huffines v. Swor Sand authorized to issue an extension to Dos Republicas. First, the & Gravel Co., Inc., 750 S.W.2d 38 (Tex.App.-Fort Worth appellees argue that the language of subsection 134.072(b) 1988, no writ); and Valero Transmission Co. v. Mitchell (2), which is the subsection relevant in this appeal, acts Energy Corp., 743 S.W.2d 658 (Tex.App.-Houston [1st Dist.] as a force majeure provision that prohibits an extension 1987, no writ), for the proposition that unfavorable market unless the permit holder has physically been prevented from conditions cannot justify a permit extension under subsection commencing operations due to “conditions beyond its control (b)(2). Although the courts in these cases did conclude that and without its fault or negligence.” Further, the appellees poor market conditions do not excuse a party's obligation contend that Dos Republicas was not actually prevented from to perform under a contract, see Day, 696 F.Supp. at 236; mining and, therefore, insist that Dos Republicas should not Huffines, 750 S.W.2d at 40; and Valero, 743 S.W.2d at 663, have been given an extension for its conscious choice not to this case does not involve a contractual dispute or a breach begin mining. of contract claim. Furthermore, in two of the cases cited, Day and Valero, the contracts at issue specifically contained a [4] [5] We disagree with the appellees' assertion. There is force majeure clause that the courts were required to interpret: no requirement listed in 134.072 that a permit holder must be there is no comparable provision in this case. 6 “physically” prevented from engaging in mining operations to obtain an extension. Further, we have been unable to find any [6] Second, the appellees analogize the effect of Dos case applying the doctrine of force majeure to the issuance Republicas's failure to begin mining operations to the effect of a permit by a state regulatory authority. The doctrine of a lessee's failure to undertake physical efforts to drill under is designed to protect parties to a contract and excuses a the terms of an oil and gas lease. Specifically, they contend party's nonperformance because of events outside the control that, under an oil and gas lease, a lessee's failure to engage of the parties. See Black's Law Dictionary 445 (abridged in physical activity on the leased property will terminate the 6th ed.1991); see also Perlman v. Pioneer Ltd. P'ship, 918 lease at the end of the lease's primary term 7 and will not F.2d 1244, 1248 n. 5 (5th Cir.1990) (force majeure describes allow for renewal, and they insist that a similar result should particular type of event, which may excuse performance apply here. See Smith & Weaver, Texas Law of Oil & Gas § under contract). The scope and applicability of the doctrine is 4.5 (2000) (“A lessee cannot safely rely upon activities which dependent upon the terms specified in a contract. See Zurich do not involve actual physical activity on the land such as ... Am. Ins. Co. v. Hunt Petroleum (AEC), Inc., 157 S.W.3d 462, applying ... for a drilling permit.... [T]he reported cases speak 466 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see also in terms of actual physical contact with the leased premises.”). Perlman, 918 F.2d at 1248 n. 5 (should look to language of contract to determine parties' intent concerning whether event However, the appellees have not referred us to cases holding complained of excuses performance); Sun Operating Ltd. that a permit holder's failure to engage in mining activities P'ship v. Holt, 984 S.W.2d 277, 282–83 (Tex.App.-Amarillo is equivalent to a lessee's failure to drill under an oil and 1998, pet. denied) (much of historic meaning of phrase force gas lease, and we see no reason to adopt such a rule. The majeure is gone and, therefore, scope and application of circumstances and expectations surrounding the issuance of doctrine is “utterly dependent upon the terms of the contract in a permit are remarkably different than those present during which it appears”); 30 Samuel Williston & Richard A. Lord, the formation of an oil and gas lease. Unlike a mining permit, A Treatise on the Law of Contracts § 77:31 (4th ed. 1990 an oil and gas lease involves two parties to an agreement, & Supp.2004) (specific language of clause indicates what not a single party and a regulatory agency. Because *568 events will excuse performance and typical clause *567 the issuance of a permit by the Commission does not involve states that party's performance is subject to “acts of God, war, two parties entering into a contract for mutual economic government regulation, terrorism, disaster, strikes ... civil benefit, the need for a termination due to non-production is disorder, curtailment of transportation facilities, or any other not as pressing because the Commission does not receive an emergency beyond the parties control”). economic benefit from a mining company corresponding to the amount of coal mined. Cf. id. (if lessee under oil and In addition, the cases the appellees refer to in support of gas lease does not begin drilling, it is obligated to pay lessor their assertion that, under the doctrine of force majeure, delay rental). Further, the economic effects of a coal mining market conditions cannot justify a permit extension are company's actions are only one factor for the Commission

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to consider when issuing, extending, or terminating a permit; it believes an extension is necessary due to “conditions as highlighted by the appellees, the Commission is also beyond the control and without the fault or negligence of charged with considering, among other things, the potential the permit holder.” Tex. Nat. Res.Code § 134.072(b)(2); environmental effects from coal mining and the effects on see also Webster's Seventh New Collegiate Dictionary 235 neighboring landowners. See Tex. Nat. Res.Code Ann. § (7th ed.1973) (“condition” means “a restricting or modifying 134.003 (West 2001). factor”). On its face, this language is broad enough to justify the Commission's extension for market conditions that are not Third, the appellees urge that, because Dos Republicas was caused by the permit holder. aware that it did not have a market established when it filed for a permit in 1994 and was aware of the social and political Further, we disagree with the appellees' contention that the instability present in Mexico when it asked for the permit to be inclusion of the phrase *569 “substantial economic loss” issued, Dos Republicas assumed those market risks knowing in subsection 134.072(b)(1) and its exclusion in subsection that it was obligated to begin mining operations within three 134.072(b)(2) indicates the legislature's intent that economic years or lose the permit. Accordingly, they contend that the conditions, including the lack of a viable coal market, cannot permit should not be extended because the potential market be used to justify a permit extension. See Tex. Nat. Res.Code problems were foreseeable. Ann. § 134.072(b); see also Mid–Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 274 (Tex.1999) ( “doctrine of We disagree with the appellees' assertion that the fact that expressio unius est exclusio alterius is simply an aid .... [and] the event was foreseeable bars invocation of the extension [a]s a rule of reason and logic, it should not be mechanically provision. There is no requirement in section 134.072 applied to compel an unreasonable interpretation”). The mandating that conditions justifying a permit extension must subsections apply in different contexts. Subsection (b)(1) have been unforeseeable to the permit holder. See id. § applies only to situations where the permit holder is involved 134.072. Moreover, many of the conditions that the appellees in litigation that either precludes the beginning of mining insist would justify a permit extension will no doubt be or threatens economic loss to the permit holder regardless foreseeable to a certain extent, including natural disasters and of whether the litigation was initiated due to some fault of individuals filing suit against the company. the permit holder. Subsection (b)(2) applies when conditions, which are not caused by the permit holder, are present Fourth, the appellees note that subsection 134.072(b)(2) and warrant an extension. Unlike subsection (b)(1), which does not specifically authorize an extension for economic is expressly limited to instances where the permit holder reasons but note that subsection 134.072(b)(1) does allow for is involved in some type of litigation, subsection (b)(2) extension due to economic concerns. Subsection 134.072(b) applies to a broader number of situations and provides no (1) allows the Commission to grant an extension if the permit express limitation on its applicability except that the permit holder is involved in “litigation that precludes the beginning holder cannot be the cause of the condition resulting in the of operations or threatens substantial economic loss.” Id. § failure to mine. Due to the distinct situations in which these 134.072(b)(1) (emphasis added). The appellees insist that if statutes apply, we believe that the legislature's failure to potential economic loss was a factor to be considered under include the phrase “economic loss” in subsection (b)(2) is subsection (b)(2), the legislature would have incorporated no indication that the lack of a market cannot be used to that language into the section. Cf. Laidlaw Waste Sys., Inc., justify an extension. The legislature specified that economic 904 S.W.2d at 659 (Tex.1995) (when legislature employs conditions are permissible considerations when determining term in one section of statute and excludes it from another, whether to grant an extension under the first part of subsection term should not be implied into section it was excluded from). 134.072(b). We can discern no reason to exclude economic conditions as permissible factors for the Commission to We cannot adopt the appellees' construction of section consider when determining whether to grant an extension 134.072. Although subsection 134.072(b)(2) does not under the more broadly written second part of subsection specifically list “economic conditions” or “the lack of a 134.072(b). market” as permissible reasons justifying a permit extension, the subsection does not list any specific situation justifying an Finally, the appellees refer to federal case law and to the extension. Instead, the subsection uses very broad language legislative history accompanying the federal counterpart to authorizing the Commission to grant an extension when the Texas Surface Coal Mining and Reclamation Act as

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support for the proposition that market conditions cannot on maintaining current environmental reclamation standards justify an extension. First, the appellees refer to Shawnee Coal and the fact that the Texas reclamation regulations in effect Co. v. Andrus, 661 F.2d 1083 (6th Cir.1981). In Shawnee, when Dos Republicas first obtained its permit are different the Office of Surface Mining, Reclamation, and Enforcement from the regulations in effect now, the appellees insist that (the “Office”) concluded that Shawnee was in violation of the Dos Republicas's permit should not have been extended for Act because it had stockpiles of coal products that released economic reasons. Cf. 30 U.S.C.A. § 1201(d) (expansion of toxic runoff and ordered Shawnee to comply with the Act coal mining requires establishment of “appropriate standards and its accompanying regulations. The district court granted to minimize damage to the environment”), (k) (West an injunction in favor of Shawnee preventing enforcement 1986) (Act is necessary to “mitigate adverse environmental of the Office's orders, but the Sixth Circuit reversed because effects”). Shawnee had not exhausted its administrative remedies prior to filing suit. Shawnee Coal Co., 661 F.2d at 1092. During a However, the fact that the federal statute was enacted with subsequent administrative proceeding, Shawnee argued that a focus on implementing current environmental reclamation it was unable to comply with the Office's orders because standards does not mandate a conclusion that a permit it could not sell the stockpiled coal products due to a cannot be extended for market reasons under the Texas depressed market. See Coalex Report 305 available at http:// statute. If anything, the focus on reclamation standards www.osmre. gov/coalex/coalex305.htm (last modified Mar. indicates the need for agency expertise in determining 24, 1999). The administrative law judge concluded that what standards to enforce and whether a permit should be Shawnee had to either comply with the regulations in question extended. Furthermore, the administrative code authorizes the or no longer conduct operations. Id. Commission to review an existing permit and modify the permit's provisions to ensure compliance with the Surface The appellees' reliance on this case is misplaced. Shawnee Mining and Reclamation Act and the relevant administrative was ordered by the Office to comply with an environmental code provisions. See 16 Tex. Admin. Code § 12.225 (2006). regulation relating to surface coal mining and subsequently Therefore, the Commission can compel a permit holder to sought injunctive relief from having to comply with the comply with more recent reclamation requirements prior to order. Dos Republicas has not failed to comply with nor the permit's termination. has it been ordered to comply with a regulation. Further, it is not seeking injunctive relief from compliance with an Dos Republicas and the Commission's assertion that environmental regulation. Rather, it is *570 attempting to the Commission may consider market conditions when extend the termination date of its mining permit, which is an determining whether to grant an extension is also supported action authorized by the natural resources code. by the broad authority the legislature bestowed upon the Commission. The natural resources code specifies that Next, the appellees refer to the legislative history the Commission has been granted exclusive jurisdiction accompanying the Surface Mining Control and Reclamation over surface coal mining and reclamation activities, has Act. Like the Texas statute, the federal statute also provides been charged with enforcing the relevant portions of the that a permit will terminate within three years if no mining code, and has been given the authority to issue rules activity is undertaken but allows a permit to be extended pertaining to mining and reclamation activities that are for reasons similar to those articulated in section 134.072. consistent with the code. See Tex. Nat. Res.Code Ann. See 30 U.S.C.A. § 1256(c) (West 1986); see also id. § 1253 §§ 134.011 (Commission given broad powers, including (West 1986 & Supp.2006) (states may obtain jurisdiction over power to adopt rules, issue and revoke permits, conduct mining if states develop program capable of implementing hearings, issue orders requiring miners to take certain actions, Act). The Senate Committee's 1977 analysis of the act and order cessation of mining activities), 134.012(a)(1) recognized that permits may be issued and renewed without (Commission has exclusive jurisdiction), 134.013 (West operations being undertaken and specified that one of the 2001) (Commission required to adopt rules relating to surface reasons for the three-year deadline is to ensure “that no one coal mining and reclamation), 134.161–.181 (West 2001) will be locked into outdated reclamation requirements” that (enforcement powers of Commission). It has also been were in effect when the permit was issued. S.Rep. No. 95– specifically charged with determining whether a permit 128, at 74 (1977), U.S.Code Cong. & Admin.News 1977, extension should be granted. Moreover, the two types 593, 612. Based on the federal legislative history's emphasis of circumstances described by section 134.072 as *571

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should be “left to the agency created to centralize expertise justifying an extension are broadly written. Accordingly, the in this area and granted broad authority concerning just Commission's interpretation of section 134.072 is entitled to such matters”). Accordingly, deference to the Commission's judicial respect. See Hammack v. Public Util. Comm'n of Tex., expertise regarding the conditions warranting an extension is 131 S.W.3d 713, 723 (Tex.App.-Austin 2004, pet. denied); appropriate. see also Moore, 845 S.W.2d at 823.

For all the reasons previously given, we conclude that the Furthermore, the appellees' arguments ignore the need for Commission's interpretation of section 134.072 as allowing agency expertise in determining whether a permit extension should be granted. See Hammack, 131 S.W.3d at 723 for a permit extension due to unfavorable market conditions (legislature bestows powers upon agency with idea that “beyond the control and without the fault or negligence of its goals will be more effectively realized by employing the permit holder” is consistent with the plain language of agency's “specialized judgment, knowledge, and expertise”). the statute. Accordingly, we conclude that the Commission The code specifies that the Commission “may” grant an did not exceed its authority when it granted Dos Republicas's extension and further states that, in determining whether to extension request because of unfavorable market conditions. grant an extension, the Commission must consider whether Therefore, we sustain Dos Republicas and the Commission's the permit holder's failure to mine is the result of events issue on appeal. beyond the control of the permit holder and must determine whether granting the extension is “necessary.” See Tex. Nat. Res.Code Ann. § 134.072(b)(2); see also Tex. Gov't CONCLUSION Code Ann. § 311.016(1) (West 2005) (word “may” creates discretionary authority). If the Commission determines that Having concluded that the Commission had the authority to an extension is necessary, the agency must also determine issue Dos Republicas's extension and having sustained Dos a “reasonable” extension time. Tex. Nat. Res.Code Ann. Republicas and the Commission's issue on appeal, we reverse § 134.072(b). These determinations necessarily involve an the judgment of the district court and remand the case for assessment of the circumstances surrounding the permit further proceedings consistent with this opinion. holder's activities and knowledge of the factual situations that might justify a permit extension. Cf. State v. Public Util. All Citations Comm'n, 883 S.W.2d 190, 195 n. 6 (Tex.1994) (determination of whether something should be considered capital or expense 215 S.W.3d 559

Footnotes * Bea Ann Smith, Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). 1 Subsection 134.072(a) reads as follows: A permit terminates if the permit holder has not begun the surface coal mining operation covered by the permit on or before the third anniversary of the date on which the period for which the permit is issued begins. Tex. Nat. Res.Code Ann. § 134.072(a) (West 2001). 2 The administrative rule interpreting section 134.072 contains nearly identical language. It provides: (b) Automatic termination shall occur as follows: (1) a permit shall terminate, if the permittee has not begun the surface coal mining and reclamation operation covered by the permit within 3 years of the issuance of the permit; (2) the Commission may grant reasonable extensions of time for commencement of these operations, upon receipt of a written statement showing that such extensions of time are necessary, if: (A) litigation precludes the commencement or threatens substantial economic loss to the permittee; or (B) there are conditions beyond the control and without the fault or negligence of the permittee 16 Tex. Admin. Code § 12.219(b) (2006). Because the rule is nearly identical to the statute, we will limit our discussion to the statute. 3 Coppock owns a cattle ranch near Dos Republicas's proposed mine site. She opposed the extension because she was concerned about how mining operations might affect the groundwater under her ranch. The remaining appellees—Juanita

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Alvarado, Guadalupe Davila, and Kickapoo Traditional Tribe of Texas—did not intervene until after the hearing examiner's proposal for decision was issued. 4 In this case, almost a year passed between Dos Republicas's filing for an extension and the Commission's decision granting the extension. 5 Whether the Commission's order was supported by substantial evidence is not at issue in this case. For this reason, we focus solely on whether the Commission exceeded its statutory authority by issuing the extension. 6 The appellees also assert that in Day v. Tenneco, Inc., the Mississippi court concluded that market conditions cannot be used to excuse a party's performance under a statute. 696 F.Supp. 233, 235–36 (S.D.Miss.1988). The statute listed various events that would excuse a party's nonperformance under a contract and included a catch-all phrase for events “beyond the control of such party.” See id. at 235–36 (citing former Miss.Code Ann. § 75–2–617 (1972)). However, as discussed previously, this case does not involve a contract dispute, and Dos Republicas is not attempting to avoid an obligation by invoking a statute excusing performance under a contract. 7 A primary term is “a period of time at the end of which the [leasehold] estate granted will terminate but which estate may be extended by some other provision, usually one for production.” Fox v. Thoreson, 398 S.W.2d 88, 91 (Tex.1966); see also Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5, 6 (Tex.App.-Houston [1st Dist.] 1988, no writ) (“primary term of the lease is the maximum period of time for which the lessee can maintain lease rights without drilling”).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013) 56 Tex. Sup. Ct. J. 295

*677 Rock W.A. Owens, Assistant Harris County Attorney, 398 S.W.3d 676 for Amicus Curiae Harris County, Texas. Supreme Court of Texas. Chesley N. Blevins, Jackson Walker LLP, Austin, TX, for SOUTHERN CRUSHED Amicus Curiae Texas Aggregates & Concrete Association. CONCRETE, LLC, Petitioner, v. Scott N. Houston, Texas Municipal League, Austin, TX, for CITY OF HOUSTON, Respondent. Amicus Curiae Texas Municipal League.

No. 11–0270. | Argued Oct. 15, Opinion 2012. | Delivered Feb. 15, 2013. Justice LEHRMANN delivered the opinion of the Court. | Rehearing Denied June 13, 2013. We must decide whether the Texas Clean Air Act (TCAA) Synopsis preempts a Houston ordinance. The City denied Southern Background: Operator of portable concrete crushing facility, Crushed Concrete's (SCC) municipal permit application to which had received an air quality permit from the move a concrete-crushing facility to a new location, even Commission on Environmental Quality (CEQ), brought though the Texas Commission on Environmental Quality action against city after it denied operator's application for had previously issued a permit authorizing construction of a municipal permit, seeking a declaration that the ordinance the facility at the proposed location, because the concrete- was preempted and an injunction against its enforcement. The crushing operations would violate the Ordinance's location 333rd District Court, Harris County, Joseph J. Halbach Jr., restriction. The TCAA provides that “[a]n ordinance enacted J., granted city summary judgment, and operator appealed. by a municipality ... may not make unlawful a condition The Houston Court of Appeals, Fourteenth District, Tracy or act approved or authorized under [the TCAA] or the Christopher, J., 402 S.W.3d 1, 2010 WL 4638417, affirmed. [C]ommission's rules or orders.” TEX. HEALTH & SAFETY Operator sought review which was granted. CODE § 382.113(b). Because the Ordinance makes it unlawful to build a concrete-crushing facility at a location that was specifically authorized under the Commission's orders by [Holding:] The Supreme Court, Lehrmann, J., held that virtue of the permit, we hold that the Ordinance is preempted. ordinance was preempted by CEQ permit. Accordingly, we reverse the judgment of the court of appeals and render judgment for SCC.

Reversed.

I. Factual and Procedural Background Attorneys and Law Firms In October 2003, SCC applied to the Commission for an *676 Benjamin Allen ‘Ben’ Geslison, Cristina Espinosa air quality permit to move an already-permitted concrete- Rodriguez, Rebecca Gilliam Hengstenberg, Stephen G. crushing facility to a new location in Houston. While the Tipps, Baker Botts LLP, Houston, TX, Derek Raymond application was pending, the Presbyterian School Outdoor McDonald, Evan Andrew Young, Whitney Louis Swift, Education Center was built near the property SCC proposed Baker Botts LLP, Austin, TX, for Southern Crushed to use for its facility. In May 2007, after nearly four years Concrete, LLC. of permit proceedings in which the City participated and opposed SCC's application, the City passed an ordinance Angus Joseph Dodson, Aundrea Kristine Gulley, Kathy D. requiring concrete-crushing facility operators to obtain a Patrick, Gibbs & Bruns LLP, Houston, TX, Bertrand L. municipal permit. HOUS., TEX., CODE OF ORDINANCES Pourteau II, Judith Lee Ramsey, Sr. Assistant City Attorneys, ch. 21, art. VI, div. 3, § 21–168. City of Houston Legal Dept., David M. Feldman, Lynette Fons, City of Houston Legal Department, Houston, TX, for Under the Ordinance, new concrete-crushing operations must City of Houston. meet certain location requirements, which are more restrictive than those imposed under the TCAA and the Commission

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013) 56 Tex. Sup. Ct. J. 295

rules. Id. §§ 21–168, –170. Specifically, the Ordinance TCAA or the Commission's rules or orders, we need only prohibits concrete-crushing operations within 1,500 feet of address that issue. a school facility and other enumerated land uses, measured from property line to property line, id. §§ 21–167 to –170, while the TCAA and Commission rules prohibit the operation II. Preemption of Ordinances of a concrete-crushing facility within 1,320 feet of any Enacted by Home–Rule Cities school and other enumerated land uses, measured from the nearest points of the buildings in question, TEX. HEALTH [1] When both parties move for summary judgment and & SAFETY CODE § 382.065(a); 30 TEX. ADMIN. CODE the trial court grants one motion and denies the other, as § 116.112(b)(2). here, we review both sides' summary judgment evidence and render the judgment the trial court should have rendered. Despite the Ordinance, the Commission granted SCC's FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, requested air quality permit in August 2008, concluding 872 (Tex.2000). SCC argues that the Ordinance is preempted that the concrete-crushing operations would not violate by the TCAA because the Ordinance makes unlawful an act the location requirements contained in the TCAA and approved or authorized under the TCAA or the Commission's Commission rules. SCC then applied to the City for a rules or orders in violation of section 382.113(b) of the Health municipal permit, which was denied because the concrete- and Safety Code. We agree. crushing operations would violate the Ordinance's location restriction. [2] [3] The City of Houston is a home-rule city, deriving its power from article XI, section 5 of the Texas Constitution. SCC sued the City, seeking both a declaration that the TEX. CONST. art. XI, § 5. Home-rule cities have the full Ordinance is preempted and an injunction against its power of self-government and look to the Legislature, not enforcement. SCC contended that the Ordinance is preempted for grants of power, but only for limitations on their powers. under the Texas Constitution because it is impermissibly Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d inconsistent with the TCAA. See *678 TEX. CONST. art. 641, 643 (Tex.1975) (citing Forwood v. City of Taylor, 147 XI, § 5 (“[N]o ... ordinance ... shall contain any provision Tex. 161, 214 S.W.2d 282 (1948)). “[I]f the Legislature inconsistent with the Constitution of the State, or of the decides to preempt a subject matter normally within a home- general laws enacted by the Legislature of this State.”). rule city's broad powers, it must do so with ‘unmistakable SCC also argued that the Ordinance is preempted by the clarity.’ ” In re Sanchez, 81 S.W.3d 794, 796 (Tex.2002) TCAA, which provides that a city ordinance “may not make (quoting Dallas Merchant's & Concessionaire's Ass'n v. City unlawful a condition or act approved or authorized under of Dallas, 852 S.W.2d 489, 491 (Tex.1993)). [the TCAA] or the [C]ommission's rules or orders.” TEX. HEALTH & SAFETY CODE § 382.113(b). SCC further asserted that the Local Government Code's uniformity-of- requirements provision bars enforcement of the Ordinance III. The Ordinance is Preempted by because the Ordinance was adopted after SCC filed its the Plain Language of the TCAA permit application with the Commission. See TEX. LOC. The TCAA's policy and purpose is “to safeguard the GOV'T CODE § 245.002. The parties filed cross-motions state's air resources from pollution by controlling or abating for summary judgment, and the trial court granted the City's air pollution and emissions of air contaminants.” TEX. motion, denied SCC's motion, and dismissed SCC's claims HEALTH & SAFETY CODE § 382.002(a). Accordingly, with prejudice. any person who plans to construct a facility that may emit air contaminants, such as a concrete-crushing facility, must The court of appeals, with one justice dissenting, affirmed, obtain a permit from the Commission. Id. § 382.0518; 30 holding that the Ordinance is neither preempted nor TEX. ADMIN. CODE § 116.110. The TCAA lists general unconstitutional and does not violate the uniformity-of- considerations the Commission may take into account in requirements provision. ––– S.W.3d ––––. SCC raises the determining whether to grant a permit. TEX. HEALTH same arguments in this Court as it did in the trial court. & SAFETY CODE § 382.0518. In issuing a permit, the Because the dispositive question is whether the Ordinance Commission determines that the permit application satisfies makes unlawful an act approved or authorized under the the TCAA and applicable rules.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013) 56 Tex. Sup. Ct. J. 295

authorization by a license, certificate, registration, or other form that is required by law or state agency rules to engage *679 [4] Section 382.113(b) states that a city ordinance in a particular business.” TEX. GOV'T CODE § 2005.001(1) “may not make unlawful a condition or act approved or (emphasis added). authorized under [the TCAA] or the [C]ommission's rules or orders.” TEX. HEALTH & SAFETY CODE § 382.113(b). The City further contends that, even if the permit The plain language of section 382.113(b) unmistakably represents the Commission's authorization or approval, such forbids a city from nullifying an act that is authorized by either authorization or approval is only for the purpose of protecting the TCAA or, as in this case, the Commission's rules or orders. air quality, not for general purposes. And, because the Here, the Commission's authorization is evident from the face Ordinance purports to regulate land use, not air quality, the of the permit: Ordinance does not actually abrogate the permit. But, the statute does not draw that distinction, nor should it if state regulation is to be effective. If the City's contention were true, A PORTABLE PERMIT IS HEREBY ISSUED TO a city could almost always circumvent section 382.113(b) and vitiate a Commission permit that it opposes by merely passing Southern Crushed Concrete, Inc. an ordinance that purports to regulate something other than air quality.

AUTHORIZING THE CONSTRUCTION AND OPERATION OF IV. Conclusion

Concrete Crushing Facility We do not decide whether a city may more restrictively regulate an activity that the State also regulates, as that issue is not before us. But, the express language of section Regulated Entity Number: RN100904838 382.112(b) compels us to give effect to the Legislature's clear The City counters that the Ordinance does not make unlawful intent that a city may not pass an ordinance that effectively an act authorized by the Commission, arguing that the moots a Commission decision. We hold that the Ordinance permit merely removed one government-imposed barrier to makes unlawful an “act approved or authorized under ... operations but did not affirmatively authorize anything. We the [C]ommission's ... orders” and is thus preempted by disagree. As Justice Brown noted in his dissent in the court the TCAA and unenforceable. TEX. HEALTH & SAFETY of appeals, the City effectively argues that “the permit the CODE § 382.113(b). We therefore reverse the judgment of Commission issued to [SCC] ‘authorizing the construction the court of appeals and render judgment for SCC. and operation of’ a concrete-crushing facility is not actually that.” ––– S.W.3d –––– (Brown, J., dissenting). The City's All Citations argument is inconsistent not only with the permit language, but also with Texas law, which defines permit to mean “an 398 S.W.3d 676, 56 Tex. Sup. Ct. J. 295

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)

584 S.W.2d 352 I. Court of Civil Appeals of Texas, Austin. Hearing was held on September 29, 1976, in Rio Grande STARR COUNTY, Appellant, City and testimony was concluded on that same day. The v. record was held open twenty days for certain supplemental STARR INDUSTRIAL SERVICES, INC., Appellee. information which was supplied and the record was then closed. No. 12899. | June 20, 1979. On January 7, 1977, the Board considered the application Applicant was denied his application for solid waste permit by and the hearing examiner's report in connection with the Water Quality Board. Intervenor county appealed judgment application. On that same day the Board voted to deny the of the 98th District Court, Travis County, Hume Cofer, application and a written order was prepared in which the J., setting aside and vacating Board's order and remanding reasons for the denial of the permit were stated. The order was cause to its successor, Texas Water Commission, for further entered February 3, 1977. proceedings. The Court of Civil Appeals, Phillips, C. J., held that a significant part of Board's action was arbitrary and The administrative record in this case is extensive and capricious where applicant had complied with requirements highly detailed. Appellee requested a permit to operate a of Board's staff for permit and where Board based its decision, commercial industrial solid waste management site to be at least in part, on local opposition to application. located approximately nine miles northwest of Rio Grande City in Starr County, Texas. The site was to consist of a Judgment affirmed. landfill type operation on an 81-acre tract leased by appellee wherein certain stabilized and neutralized industrial wastes would be buried in trenches and surrounded and covered Attorneys and Law Firms *354 with clay-rich soil. The anticipated active life of the *353 Robert Wilson, McGinnis, Lochridge & Kilgore, site was three to four years, and the permit sought provided Austin, for appellant. for various safeguards and monitoring of the site, both during its active life and for a period of time after closure. Edward C. Small, Dennis R. Reese, Small, Craig & Werkenthin, Austin, for appellee. The original application contained extensive and detailed information concerning the character of the wastes, Opinion operations and closing of the facility. The details of many PHILLIPS, Chief Justice. aspects of the application were modified and supplemented by additional information and specifications subsequently Appellee filed an application with the Texas Water Quality submitted as a result of conferences with, and requests by, the Board requesting approval for a Class I industrial solid waste Board's staff. permit for a landfill to be located in Starr County, Texas. The Board 1 denied the application after a hearing. Appellee The Board's technical staff, using the application and appealed the denial of the order to the district court wherein information supplied by appellee, along with its own Starr County intervened. information resources, drafted a proposed permit which it felt would include all of the provisions necessary for the The trial court reviewed the order and rendered judgment protection of ground and surface waters, public and private setting aside and vacating the Board's order and remanding property and the general health and public welfare. The the cause to its successor, Texas Water Commission, for provisions of the proposed permit were explained by the staff further proceedings. Intervenor, Starr County, subsequently and fully discussed at the public hearing which was held at perfected its appeal from the judgment. Rio Grande City.

We affirm. The principal opposition to the permit came from the county judge of Starr County, the Rio Grande City Chamber of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)

Commerce, and from a state senator. The general tenor of the objections was that the opponents were totally against any 2. The lease agreement for a term of only five years Class I toxic waste dump in Starr County. will not allow for adequate supervision, control or monitoring of the site after it is closed. Consequently, in a letter from the Board's executive director, 3. The operation of an industrial solid waste Hugh Yantis, Jr., who was a member of the hearing management site in Starr County at the location commission, it was stated: “It appears that the site and the proposed is inconsistent with the future land use technical factors surrounding it are sustainable as permitting and development in the area. an industrial solid waste disposal operation,” but concluded that the application could be denied “on the basis of the 4. The adamant local opposition to the application for express views of the people within the county.” At the hearing a proposed industrial solid waste management site of the Board on January 7, 1977, a Board member moved that evidences that the granting of a permit would be the permit be denied for the reason that: contrary to the welfare of the people in the area.

“I likewise am reluctant to imply that we have veto power over the CONCLUSIONS OF LAW local government and I must conclude, Based on all findings of fact, the following conclusions of all the arguments possibly to the law are made: contrary, that there is considerable local opposition on the part of the local *355 3. There has been full compliance with all governments, more than just one, and applicable provisions of Chapter 21 of the Texas I'm inclined to agree with Mr. Yantis.” Water Code and Section 4 of the Solid Waste Disposal Act and the accompanying Rules of Practice The motion carried and the permit was denied. and Procedure of the Texas Water Quality Board concerning the application for a permit.“ A written order, denying the application, was entered on In its motion for rehearing, appellee offered to comply February 3, 1977, and included the following pertinent with some of the new requirements, but the Board simply findings and conclusions. overruled the motion.

“FINDINGS OF FACT II. 1. The construction and management of the industrial solid The Administrative Procedure and Texas Register Act (APA) waste disposal site as proposed is inadequate to prevent provides that the courts shall remand the case for further or minimize adverse public health and environmental proceedings “. . . if substantial rights of the appellant impact from accidents resulting from the transportation, have been prejudiced because the administrative findings, processing, and disposal of industrial solid waste, which inferences, conclusions, or decisions are: includes hazardous and toxic materials, because of the following: (1) in violation of constitutional or statutory provisions; (a) the proposed staffing pattern at the site would allow for extended periods of time during which no one would be (2) in excess of the statutory authority of the agency; at the site; and

(3) made upon unlawful procedure; (b) the lack of resources or necessary equipment in Starr County to adequately handle the possibility of accidents (4) affected by other error of law; from fire, explosions, or traffic mishaps.

(5) Not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)

judgment for that of *356 the agency. Citizens to Preserve (6) Arbitrary or capricious or characterized by abuse Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 of discretion or clearly unwarranted exercise of L.Ed.2d 136 (1971). There must appear a rational connection discretion.“ (Emphasis added). Tex.Rev.Civ.Stat.Ann. art. between the facts and the decision of the agency. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 6252-13a, s 19(e) (Supp.1978). 2 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); 5 B. Mezines, J. Stein and J. Gruff, Administrative Law s [1] In distinguishing between paragraphs five and six, the 51.03, at 51-33 (1979). Stated differently, the reviewing legislature has decided that arbitrary and capricious action court must remand “. . . if it concludes that the agency has or abuse of discretion by an administrative board is of equal not actually taken a hard look at the salient problems and proscription as that action “not reasonably supported by has not genuinely engaged in reasoned decision-making.” substantial evidence.” In other words, subsection six sets out Texas Medical Association v. Mathews, 408 F.Supp. 303, 305 a basis for invalidation of an agency order in addition to and (W.D.Tex.1976). That court set aside an order because the distinct from subsection five. agency had been subjected to pressure from congressional sources. This conclusion is more difficult than would appear merely from reading section 19(e). The well recognized explanation The major factor that runs throughout arbitrary-capricious of the substantial evidence rule has blended the two concepts, review cases is that parties must be able to know what is substantial evidence and arbitrary or capricious, into one expected of them in the administrative process. We believe standard of review. The substantial evidence rule is generally this notice was lacking in the present case. described as a limitation on the power of the courts to overturn a decision by an administrative agency in that there must [5] As we stated above, the appellee worked quite closely be a showing “. . . the administrative decision is illegal, with the Board's staff, and, apparently, had complied with all arbitrary, or capricious; that is, that it is not reasonably of the staff's requirements for a permit when, to its surprise, supported by substantial evidence.” Board of Firemen's Relief the Board denied the permit citing additional requirements and Retirement Fund Trustees v. Marks, 150 Tex. 433, 242 that had neither been expected by appellee nor proposed by S.W.2d 181, 182-83 (1951). Accord, e. g., Gerst v. Cain, the Board's staff. In addition, the Board found: “The adamant 388 S.W.2d 168 (Tex.1965); Chemical Bank and Trust Co. local opposition to the application for a proposed industrial v. Falkner, 369 S.W.2d 427 (Tex.1963); Industrial Accident solid waste management site evidences that the granting of a Board v. O'Dowd, 157 Tex. 432, 303 S.W.2d 763 (1957). permit would be contrary to the welfare of the people in the Stated in even stronger language, “. . . an arbitrary action area.” Nowhere in the Act is local opposition mentioned for cannot stand and the test generally applied by the courts in consideration as a standard to govern the Board's decision and determining the issue of arbitrariness is whether or not the such opposition, standing alone, should have no part in the administrative order is reasonably supported by substantial Board's decision-making process. Yet obviously it did. evidence.” Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966). [6] Inasmuch as we find that a significant part of the Board's [2] The Texas Supreme Court has expressly qualified the action herein was arbitrary and capricious under Section 19(e) language of Gerst v. Nixon, Supra, in Lewis v. Metropolitan (6) of the Administrative Procedure Act, we need not reach Savings and Loan Association, 550 S.W.2d 11 (Tex.1977). the substantial evidence question raised by appellant. Because There the Court made it clear that an order may be supported appellee's substantial rights were prejudiced by entry of the by substantial evidence and yet be invalid for arbitrariness. agency order, the district court correctly set aside the order “(A)rbitrary action of an administrative agency cannot stand. and remanded the cause to the agency for further proceedings. There is arbitrariness where the treatment accorded parties in the administrative process denies them due process of law.” The judgment is affirmed. Id. at 16.

[3] [4] In determining whether an agency has acted All Citations arbitrarily or capriciously the reviewing court must decide whether the agency order was based on a consideration of all 584 S.W.2d 352 relevant factors. The reviewing court may not substitute its

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)

Footnotes 1 Now consolidated into the Texas Department of Water Resources. 2 Section 19(e) (and its subsections) is applicable where the relevant statute “. . . authorizes review under the substantial evidence rule, or where the law does not define the scope of judicial review.” The Solid Waste Disposal Act is silent as to the scope of judicial review; therefore, section 19(e) applies to this case.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977) 18 A.L.R.4th 973

denying a permit to demolish three buildings owned by the College District. The trial court rendered judgment for 554 S.W.2d 924 the College District, stating that in its judgment section Supreme Court of Texas. 6 of the Antiquities Code is both unconstitutional and TEXAS ANTIQUITIES unconstitutionally applied. This court has jurisdiction by COMMITTEE et al., Appellants, direct appeal. Tex.Rev.Civ.Stat.Ann. art. 1738a (1962); v. Tex.R.Civ.P. 499a. DALLAS COUNTY COMMUNITY Dallas County Community College District came into COLLEGE DISTRICT, Appellee. existence in 1965 as authorized by section 130.005 of the Texas Education Code. Its Board of Trustees “constitutes No. B-6107. | July 13, 1977. a body corporate” which may “acquire and hold real | Rehearing Denied July 27, 1977. and personal property, sue and be sued,” and has “the exclusive power to manage” the College District's affairs. County community college district filed suit for injunction Tex.Educ.Code Ann. s 23.26. Acting under its legislative against Antiquities Committee and its members to set aside authorization, the College *926 District in 1966 purchased order of Committee denying a permit to demolish three land in downtown Dallas on which there were four buildings; buildings owned by college district. The 53rd District Court, the cost of the purchase was 2,150,000 dollars. The City of Travis County, Jones, J., rendered judgment for college Dallas permitted temporary limited use of the three older district, and Antiquities Committee appealed. The Supreme buildings upon assurance that they would be demolished Court, Pope, J., held that: (1) section of antiquities code giving within three to five years. Plans for the demolition of the three Antiquities Committee power to refuse to demolish building older buildings were announced to the public as early as 1969. that was of historical interest was unconstitutionally vague, (2) and evidence did not support Antiquities Committee's The Board of Trustees of the College met in 1972 and voted refusal to permit demolition of three buildings owned by to restore the one building that was structurally sound and to college district. demolish the three older buildings so the space could be used for new college facilities. The Board met on April 1, 1975, Affirmed. to consider demolition bids, but a group of citizens requested a ten-day delay during which time the group hoped to find Greenhill, C. J., concurred with opinion. funds for rebuilding the three buildings which were set for demolition. The group was unsuccessful in finding any funds, Denton, J., dissented with opinion in which Daniel, Johnson but it reported to the Board that on April 8 the buildings had and Yarbrough, JJ., joined. been placed on the National Register of Historical Buildings. No prior notification was given the College District that an expedited application was being made for inclusion of the Attorneys and Law Firms buildings in the National Register. *925 John Hill, Atty. Gen., Austen H. Furse, Asst. Atty. After the College District purchased the land and buildings Gen., Austin, for appellant. in 1969 and made its plans for the College's efficient use Strasburger, Price, Kelton, Martin & Unis, Patrick F. of the land, the legislature enacted the Antiquities Code. McGowan, H.P. Kucera, Dallas, Clark, Thomas, Winters & Tex.Rev.Civ.Stat.Ann. art. 6145-9 (1969). The Antiquities Shapiro, Barry K. Bishop and Mary Joe Carroll, Austin, for Code provided for an Antiquities Committee consisting appellee. of seven members. Tex.Rev.Civ.Stat.Ann. art. 6145-9, s 3 (1969). Section 4 of the Code gives the Antiquities Opinion Committee the authority “to determine the site of, and to designate, State Archeological Landmarks . . . .” Section POPE, Justice. 10 proscribes any construction on any State Archeological Dallas County Community College District filed this suit Landmark without first obtaining a permit from the for injunction against the Texas Antiquities Committee Antiquities Committee. 1 Section 10 is the only provision and its members to set aside an order of the Committee of the Code which in any way entitles the Committee to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977) 18 A.L.R.4th 973

grant or deny a permit for the demolition of the buildings. The Antiquities Committee has not designated any of the We affirm the trial court judgment and will now examine each three buildings at issue as State Archeological Landmarks, of its separate adjudications. but the Committee has denied the College District's request to demolish the buildings based upon the buildings' expedited UNCONSTITUTIONALLY VAGUE STATUTE inclusion in the National Register of Historic Sites and Buildings. The Antiquities Code does not give the Antiquities The first basis of the trial court's judgment was that section 6 Committee authority over buildings in the National Register; of the Antiquities Code, stated above, was unconstitutionally instead, the Code only gives the Committee authority over vague. There has been no contention that the three buildings buildings which the Committee has designated as a State in question possess archeological, scientific, or educational Archeological Landmark. Since the Committee has not interest. The Antiquities Committee only contends that the designated the buildings as State Archeological Landmarks, buildings are of “historical interest.” The sole basis for the the College District does not need the Committee's permission exercise of the Antiquities Committee's power over the three before demolishing the buildings. buildings is found, if it can be found, in these words of the statute: The trial court grounded its judgment upon two separately Sec. 6. All . . . buildings . . . and locations stated and separately numbered adjudications: of historical . . . interest. 1. Section 6, Article 6145-9, V.T.C.S., reading as follows:

Sec. 6. All other sites, objects, buildings, artifacts, The Antiquities Committee, although it has the power, by implements, and locations of historical, archeological, article 6145-9, section 11, has adopted no rules or standards scientific, or educational interest, including but expressly which state criteria for “buildings . . . and locations of not limited to, those pertaining to prehistoric and historical historical . . . interest.” The Antiquities Committee does American Indian or aboriginal campsites, dwellings, and not contend that section 6 gives any predictable standard or habitation sites, *927 their artifacts and implements of safeguard. Its position is that the law which strikes down culture, as well as archeological sites of every character statutes because they are vague, overbroad, and uncertain that are located in, on or under the surface of any lands should be overruled. It argues that the power of the legislature belonging to the State of Texas or by any county, city or to delegate its powers to state boards and commissions should political subdivision of the state are hereby declared to be be unlimited so long as there are experts who constitute the State Archeological Landmarks and are the sole property of membership of the Committee. the State of Texas and all such sites or items located on private lands within the State of Texas in areas that have There has been called to our attention no case in Texas or been designated as a “State Archeological Landmark” as elsewhere in which the powers of a state board are more hereinafter provided, may not be taken, altered, damaged, vaguely expressed or less predictable than those permitted by destroyed, salvaged, or excavated without a permit from, or the phrase in question. The word “buildings” comprehends in violation of the terms of such permit of, the Antiquities all structures; “historical” includes all of the past; “interest” Committee. ranges broadly from public to private concerns and embraces fads and ephemeral fascinations. All unrestorable structures is unconstitutional and void, and the orders of the Defendants ordinarily hold some nostalgic tug upon someone and may all based thereon are unconstitutional and invalid. qualify as “buildings . . . of historical . . . interest.” [1] Upon the basis of the statute now before us, we are 2. Plaintiff need not obtain a permit from the Defendants unconvinced that we should renounce the settled law of before demolishing the three buildings in question situated Texas that the legislature may not delegate its powers without on Plaintiff's El Centro Campus in the City of Dallas, providing some criteria or safeguards. Depending upon the Dallas County, Texas, and bounded by Elm, Austin, Main nature of the power, the agency, and the subject matter, and Lamar Streets in said city; and the application of the varying degrees of specific standards have been required Texas Antiquities Act, Article 6145-9, to these buildings is in testing the reasonable breadth of statutes. 1 Sutherland, unconstitutional as applied. Statutory Construction, s 4.05 (4th ed. 1975); Jordan v. State Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (1960). Sound reasons support the rule that some reasonable standard

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977) 18 A.L.R.4th 973

is essential to the constitutionality of statutory delegations of Treatise, s 2.16 (1st ed. 1970). Instead, he would substitute powers to state boards and commissions. administrative standards in the form of published rules and Vague laws offend several important regulations for statutory standards. See Trapp v. Shell Oil Co., values. First, because we assume that 145 Tex. 323, 198 S.W.2d 424 (1947). We have, in this case, man is free to steer between lawful no standard or criteria either by statute or rule which affords and unlawful conduct, we insist that safeguards for the affected parties. laws give *928 the person of ordinary intelligence a reasonable opportunity to Unconstitutional Application know what is prohibited, so that he may act accordingly. Vague laws may trap the [2] [3] The second basis for the trial court's judgment is innocent by not providing fair warning. that “the application of the Texas Antiquities Act, Article (Footnote omitted.) Second, if arbitrary 6145-9, to these buildings is unconstitutional as applied.” We or discriminatory enforcement is to be agree with this conclusion. Since the Antiquities Committee prevented, laws must provide explicit is a state agency, the Antiquities Committee's application standards to those who apply them. of section 6 of the Antiquities Code must be judged by the A vague law impermissibly delegates substantial evidence rule. Railroad Commission v. Shupee, basic policy matters to policemen, 57 S.W.2d 295 (Tex.Civ.App.1933), aff'd, 123 Tex. 521, 73 judges, and juries for resolution on S.W.2d 505 (1934). The substantial evidence rule demands ad hoc and subjective basis, with that we hold section 6 unconstitutional as applied if the the attended dangers of arbitrary and evidence is such that reasonable minds could not have reached discriminatory applications. Grayned v. the conclusion that the Antiquities Committee must have City of Rockford, 408 U.S. 104, 108-109, reached in order to justify its actions. Trapp v. Shell Oil Co., 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d supra ; (Railroad Comm.) TremCarr v. Shell Oil Co., 139 222 (1972). Tex. 66, 161 S.W.2d 1022 (1942). We hold that there is no substantial evidence in support of the action of the Antiquities Committee.

We adhere to the settled principle that statutory delegations of power may not be accomplished by language so broad and There are two reasons for this conclusion. This first one is that vague that persons “of common intelligence must necessarily a program to restore the buildings would compel the misuse guess at its meaning and differ as to its application.” Connally of public funds that were obtained by approving a bond issue v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, for educational purposes. The college delayed its contract for 70 L.Ed. 322 (1926). We are not persuaded that we should demolition so that those seeking to save the buildings might overrule or disapprove such cases as Key Western Life Ins. come forward with funds necessary to do so. If those funds Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d had been available, the public school money would not have 839 (1961); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 been needed. No source of funds for salvage and restoration S.W.2d 446 (1942); Housing Authority of City of Dallas is suggested by any of the witnesses, other than the school v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (1940); funds. The school funds were already dedicated and allocated Martinez v. Texas State Board of Medical Examiners, 476 to the College District's educational purposes. The testimony S.W.2d 400 (Tex.Civ.App.1972, writ ref'd n.r.e.), appeal shows that the large sums of money required to restore the dism., 409 U.S. 1020, 93 S.Ct. 463, 34 L.Ed.2d 312; buildings would exhaust the College funds essential to its Commissioners Court of Lubbock County v. Martin, 471 authorized educational purposes. Restoration of the buildings S.W.2d 100, 105 (Tex.Civ.App.1971, writ ref'd n.r.e.); E.S.G. would also require the reconstruction of five times more space v. State, 447 S.W.2d 225 (Tex.Civ.App.1969, writ ref'd than is needed for educational purposes. The Antiquities n.r.e.). Committee recognized this fact. A witness *929 for the Committee stated that funds might be granted by the National Professor Davis concludes that the non-delegation doctrine Park Service provided the buildings are usable, but not if in federal courts has been less than successful, but he they are simply restored to be exhibited as old buildings. An would not abolish all standards. Davis, Administrative Law architect testifying for the Committee expressed the opinion

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that “the only source I know of for the money would be . . . the occupants, books, and furniture would impose weight loads Community College . . . .” The President of the College said that the buildings could not bear even if restored. If usable that the public would be considerably upset if it thought there as commercial rented space, there would be a continuing was a possibility of diverting school funds to the restoration financial burden to the College District. For example, one for non-educational purposes. Upon the basis of this kind building could be restored at a cost of 6,000,000 dollars of evidence from both those who favored and opposed the and then rented for commercial purposes with a maximum restoration of the buildings, the trial court quite properly return of no more than 2.98 percent. But leasing for concluded that the Act was unconstitutionally applied to a business purposes would be difficult because the commercial situation in which property and funds committed to a public offices would be in the midst of an inappropriate academic trust for the benefit of the people in the school district would community. That part of downtown Dallas already has an be arbitrarily diverted to a wholly different purpose. eighteen to twenty percent vacancy rate for its buildings. From this record, there is no substantial evidence that the The second reason for our decision is that the buildings buildings, even after reconstruction and renovation could be are incapable of restoration except upon an unreasonable usable for educational purposes. expenditure of money. The inferior materials used in the original construction of the buildings requires complete The Antiquities Committee confronts the trial court's reconstruction from the foundation up and at a cost judgment with the contention that the College District, as a greater than original new construction. The engineering and political subdivision of the state is subordinate to the powers architectural evidence is that the only way to bring the of the Antiquities Committee; has no contract or property buildings up to code standards or to save them is to rebuild rights which are protectable against the Committee's superior them. Even the foundations would have to be rebuilt. The powers. We need not in this case, decide which of two state cost of rebuilding all three buildings would be in excess of agencies is charged with *930 the “higher” trust. In this 10,500,000 dollars. There is danger of collapse of the outside case that question would cast the educational needs of the walls if reconstruction is undertaken. Estimates for the cost state's citizens against the preservation of the 1910 buildings of reconstruction range from thirty-five dollars to eighty- described above. The Committee, relying upon the language one dollars per square foot. One witness for the Antiquities of Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 Committee said that anything can be built if you construct L.Ed. 151 (1907), argues that “the State is supreme, and a building out of money, but the reconstruction would cost its legislative body . . . may do as it will, unrestrained by more than new construction. He stated that the diversion of any provision of the Constitution of the United States.” That the College District's funds from education to the preservation expression of statism satisfies neither the protections of the of the three buildings presented an unsolvable conflict. United States Constitution or the Texas Constitution. Another witness for the Antiquities Committee suggested that the solution to the construction problem was to gut the The United States Supreme Court has closely restricted buildings, use the facades as curtain walls, and put a new Hunter's broad and loose language in Gomillion v. Lightfoot, structural frame inside. Sandstone and brick have been falling 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Justice from the buildings since 1967. Both the sandstone and the Frankfurter, writing for the court in Gomillion, circumscribed windowsills have now been purposely chiseled away from the its dicta by an analysis of the matters before the court in outside of the buildings to avoid their falling on people in Hunter and wrote: the streets below. Of three hundred core samples taken from In short, the cases that have come the building, all came out as dust, chips, or loose bricks. The before this Court regarding legislation buildings have already outlasted by more than forty years the by States dealing with their political time for which they were designed. The exterior walls support subdivisions fall into two classes: (1) the floor load. One building, eight stories high, uses wood those in which it is claimed that the columns. All three buildings are at least nine times below the State, by virtue of the prohibition against code requirements. impairment of the obligation of contract (Art. I, s 10) and of the Due Process The only use for the buildings suggested by the Antiquities Clause of the Fourteenth Amendment, is Committee, even after the costly rebuilding would be as without power to extinguish, or alter the commercial office space. The buildings cannot be made boundaries of, an existing municipality; usable for educational purposes. Classrooms with many and (2) in which it is claimed that

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the State has no power to change property as trustee for the public. This court held, instead, that the identity of a municipality whereby the school district's property must be used for the purposes citizens of a pre-existing municipality for which it was acquired. This court stated that the school suffer serious economic disadvantage. district: 364 U.S. 342-343, 81 S.Ct. 128. has no contract right to exist as a corporation, but the public that it represents has a vested right in the In a society when so many rights are subject to the regulation municipal property acquired for its of administrative agencies, Gomillion brought the “plenary benefit, and is entitled to demand that power” doctrine of Hunter under appropriate limitations, such property be applied to its uses. 40 stating: S.W.2d at 27. a correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State *931 Love cited with approval the principle enunciated in has plenary power to manipulate in 24 Ruling Case Law, Schools ss 45-47 (1919), that school every conceivable way, for every funds and property are trust funds for educational purposes; conceivable purpose, the affairs of its consequently, they should not: municipal corporations, but rather that be diverted to other even though closely the State's authority is unrestrained kindred uses, no matter how meritorious by the particular prohibitions of the the project may appear to be either in Constitution considered in those cases. its practical or ethical or sentimental aspects. Even the legislature, itself, the [4] The Texas law has developed in a similar fashion. fountain head of matters educational, One agency of the state does not possess powers to cannot divert school funds to other uses. divest vested property and contract rights of another state 40 S.W.2d at 27. agency “unrestrained by the particular prohibitions of the Constitution.” In Milam County v. Bateman, 54 Tex. 163 (1880), the legislature granted land to the county for public Since the Antiquities Committee's application of section 6 school purposes. Subsequently, the legislature took this land diverts the buildings to uses other than educational purposes, from the county and transferred it to private individuals. Love demands that we hold section 6 unconstitutional as This court held that the legislature could not do this. The applied. legislature's extensive control over its subdivisions' political rights was recognized, but it was held that a subdivision's [6] On the basis of the trial court's findings that section property rights, “are protected by the same constitutional 6 of the Antiquities Code is both unconstitutional and guarantees which shield the property of individuals.” 54 Tex. unconstitutionally applied, we affirm the trial court judgment. at 166. Milam County went on to state that, “the purpose for which the property was originally acquired shall, as far as circumstances will admit, be kept in view; and that it shall GREENHILL, C. J., concurs with an opinion. not arbitrarily be diverted as in the case before us, to private parties and to a wholly different purpose.” 54 Tex. at 166. DENTON, J., dissents in an opinion in which DANIEL, JOHNSON and YARBROUGH, JJ., join. [5] Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931) faced the issue whether the legislature had plenary GREENHILL, Chief Justice, concurring. power over a school district's property and functions. The question in Love was whether a school district must, as the I agree that the judgment of the trial court should be affirmed; legislature had enacted, use its funds to educate non-residents and, therefore, I concur in the judgment of the Court. of the local district. Writing for the court, Chief Justice Cureton rejected the idea that the legislature has plenary It clearly appears to me that this particular determination of powers over its creature when the school district holds its the Antiquities Committee is not supported by substantial

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evidence. Stated differently, for the reasons set out in the administer such property for educational purposes. It is not Court's opinion, the action of the Board is arbitrary and given the right to vote, the freedoms of speech, press, and without a sound basis. religion, the right to counsel, or any other right enjoyed by people under the Constitution. This is because a political My conclusion is based on the application of the substantial subdivision is not now and never has been a “person” in any evidence rule and not upon constitutional grounds. When a sense of the term. It was early established by this Court that a controversy may be resolved on a non-constitutional ground, public political subdivision is merely an agent of the State in then the court should rest its decision on that ground, and the *932 administration of its power. In Bass v. Fontelroy, should not decide the constitutional questions presented. 11 Tex. 698 (1854) the Legislature had repealed the charter Neese v. Southern Railway Co., 350 U.S. 77, 76 S.Ct. 131, of the City of Brownsville; the repeal was challenged as 100 L.Ed. 60 (1955); Peters v. Hobby, 349 U.S. 331, 75 S.Ct. an unlawful taking of vested property rights without just 790, 99 L.Ed. 1129 (1955). I therefore, do not reach any compensation. Justice Lipscomb, denying the City's claim, constitutional question. stated that: The establishment of counties, their DENTON, Justice, dissenting. boundaries, courthouses, jails, bridges, ferries, are all matters of public policy, I respectfully dissent. Four of my brothers hold that section dependent on the legislative will for six of the Antiquities Code is too vague, so it violates the Due their creation; and . . . are equally Process Clause of both the State and Federal Constitutions. I dependent upon the same for their disagree; the College District does not have standing to assert continued existence. deprivation of property without due process, and under what I perceive as the proper scope of review in this case there exists no justiciable controversy. 11 Tex. at 705. And in Guadalupe County v. Wilson County, 58 Tex. 228 (1882), the Legislature in creating Guadalupe My first disagreement with the plurality is in the application County had taken portions of Wilson County without of the Fourteenth Amendment and Art. I, s 19 of the Texas compensation. The ensuing boundary dispute was held Constitution: a political question, resolved beyond judicial interference nor shall any State deprive any person by the Act creating Guadalupe County and defining its of life, liberty, or property, without due boundaries to the exclusion of Wilson County. The agency process of law . . . . concept of municipal corporation law was specifically relied upon in City of Victoria v. Victoria County, 100 Tex. 438, 101 S.W. 190 (1907), where this Court, in upholding a legislative U.S.Const. Amend. XIV, s 1. transfer of title from the county to the city stated: No citizen of this State shall be deprived The principle is that insofar as a of . . . property . . . except by due course corporation strictly municipal or quasi- of law . . . . municipal holds property for the purposes of government, it holds merely as a governmental agency, and it is within Tex.Const. Art. I, s 19. Essential to a holding that the College the power of the Legislature of the State District has not been afforded due process is a holding that the to confer that agency upon some other District is a person, or a citizen. There exists no authority to proper governmental instrumentality. support the holding, implicit in the plurality opinion, that the College District is a “person,” and I can think of no rationale for such a holding. 100 Tex. at 451, 101 S.W. at 196. See also, Herget, The The College District is a body politic, or political subdivision Missing Power of Local Government, 62 Va.L.Rev. 999 of the State of Texas, created pursuant to the legislative (1976). authority of article 2815h of the civil statutes. The College Decisions of the United States Supreme Court establish District is authorized to levy taxes, acquire title in its that political subdivisions, as agencies of the State in the own name to real and personal property, and generally to

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exercise of governmental powers, have no rights assertible to in Gomillion, involved claims under the Fourteenth under the Federal Constitution against the State. The famous Amendment. To reiterate, Gomillion involved the rights of case of Trustees of Dartmouth College v. Woodward, 17 private persons ; it has no application to the controversy U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819), established at hand. The plurality cite no case in which a political that public corporations, as distinguished from private subdivision has been held entitled to due process and there is business corporations, enjoy no protection assertible under none. the contract clause of the Federal Constitution against legislative alteration of organic charters. See Campbell, John This Court has, on two occasions, enunciated the proper Marshall, The Virginia Political Economy, and the Dartmouth scope of judicial review over legislative control of political College Decision, 19 Am.J.Legal Hist. 40 (1975). Cases subdivisions. Far from holding that political subdivisions are following Dartmouth College have reiterated that the charter entitled to due process of law, this Court has stated that the of a political subdivision, being a mere delegation of State only protection is against arbitrary diversion of property held authority, is subject to alteration or revocation at the will of by political subdivisions in such a fashion that the public the Legislature. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 would be deprived of the use of such property. The only S.Ct. 40, 52 L.Ed. 151 (1907); Covington v. Kentucky, 173 judicial question is arbitrariness vel non of the legislative U.S. 231, 19 S.Ct. 383, 43 L.Ed. 679 (1899); Meriwether v. action. Garrett, 102 U.S. 472, 26 L.Ed. 197 (1880); East Hartford v. In Milam County v. Bateman, 54 Tex. 163 (1880), the Court Hartford Bridge Co., 51 U.S. (10 How.) 511, 13 L.Ed. 518 commented: (1850). A municipality thus was denied the power to assert Counties in their relation toward the state denial of due process of law in City of Trenton v. New Jersey, may be viewed in a two-fold aspect: one, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923). And Mr. which pertains to their political rights and Justice Cardozo in Williams v. Mayor of Baltimore, 289 U.S. privileges; the other, to their rights of 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933) made it clear that no property. protection is offered a political subdivision by the Fourteenth Amendment. To the Supreme Court, a political subdivision simply is not a person; and is not, therefore, entitled to due 54 Tex. at 165. Concerning “political rights and privileges,” process. See Schulz, The Effect of the Contract Clause and including the right of organic existence, the Court noted that the Fourteenth Amendment upon the Power of the States to a county has no assertible rights against the State; the latter Control Municipal Corporations, 36 Mich.L.Rev. 385 (1938). was said to be in complete control. Different considerations The plurality cites Gomillion v. Lightfoot, 364 U.S. 339, 81 were deemed applicable as to “rights of property.” S.Ct. 125, 5 L.Ed.2d 110 (1960) as providing the necessary A different principle, however, obtains as regards the rights exception to the rule. In that case voters, that is People of of counties to property which they may acquire. Tuskeegee, Alabama argued that a legislative redistricting of the city deprived them of the voting rights under the If given for a specific object, the state may very properly, as in Fifteenth Amendment. There were no “rights” of the city, a the instance under consideration of our school lands granted political subdivision, before the Court. The plurality quote the to counties, exercise such supervision and control over the following from the Gomillion opinion: actions of the counties as to compel the proper execution of the trust, or prevent its being defeated; but it is believed that (A) correct reading of the seemingly this control, unless by consent of the county, should be subject unconfined dicta of Hunter and to the restriction, that the purpose for which the property was kindred cases is . . . that the originally acquired shall, as far as circumstances will admit, State's authority is unrestrained by be kept in view ; and that it shall not arbitrarily be diverted . . . the particular prohibitions of the to private parties and to a wholly different purpose. Constitution considered in those cases.

54 Tex. at 165-66 (emphasis mine). *933 364 U.S. at 344, 81 S.Ct. at 128 (emphasis mine). As stated above, City of Trenton v. New Jersey and Williams The quoted portions of the Milam County opinion were v. Mayor of Baltimore, supra, two of “those cases” referred genesis to this Court's consideration of legislative power

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in Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 government entity in which title was theretofore reposed. The (1931). In Love the Court was concerned with whether the interest protected by Milam County and Love is the public's Legislature could impose upon the City the obligation to interest in use of the property, not the local entity's interest in employ City funds for the education of nonresident children. nominative title. Change in nominative title effects no change It was determined that such an imposition would violate in use. The nominative title to public property is a patently Tex.Const. Art. VII, s 3, in that it would divert special school political matter to which the words of Justice Bonner in funds. * In spite of such holding the Court went on to discuss Milam County are peculiarly applicable: “If (the State) could the legislative power over its subdivisions in general: not exercise such power over the delegated political rights and The rule is that the ownership of (local government) property privileges of . . . subdivisions of state governmental authority, is in the local district or municipality for the benefit of the we might have a system of petty discordant governments public, within the boundaries of the district or municipality. within a government, without unity of design or action.” The Legislature may control or dispose of the property 54 Tex. at 165. See also Chester County Institution District without the consent of the local bodies, so long as it does not v. Commonwealth, 341 Pa. 49, 17 A.2d 212 (1941). And apply it in contravention of the trust. although the grant of power to the Antiquities Committee to 120 Tex. at 367, 40 S.W.2d at 27 (emphasis mine). prohibit or regulate alteration, damage or destruction of an “archeological landmark” indirectly might effectuate some change in a use, the legislative decision to vest power to The limitations upon legislative power in Milam County and make that change in a committee of seven experts cannot Love are founded upon sound reason. Local government be considered arbitrary. It is as I have said, only arbitrary property is, in principle and in fact, trust res conveniently regulation of local government property which gives rise to a held and managed by local officials for the benefit of justiciable interest on the part of local government officials. the local public. Where, *934 as here, such property has In the instant case, the College District claims that the been acquired with governmental funds pursuant to specific buildings cannot compatibly be used for both educational and approval of the local voting public, there arises special reason cultural (historical preservation) purposes. It might indeed for enforcing the trust; justifiably, the public has a reliance be a justifiable implication from the Antiquities Committee's interest in the disposition of property acquired for and devoted action that the educational function of the College District to a designated use. Milam County instructs the Legislature would be promoted rather than impaired by the requirement in its supervision of local government property to keep in that the cultural integrity of school buildings be maintained. view “the purpose for which the property was originally But making such an implication is not a judicial function. acquired,” and prohibits arbitrary diversion to a “wholly It is not the duty of the courts in a case of this nature to different purpose.” Love goes further to say that Legislative view structures, deemed by one State agency as culturally power over local government property is regulatory only; insignificant and by another as worthy of preservation, while the entity is subject to legislative destruction, the and decide which is in the right. This is especially true property held by that entity remains in the public trust. On the where the Legislature has granted the other the power to other hand, neither Milam County nor Love can be considered preserve without granting the one the right to question. authority for the proposition that local government entities Firemen's & Policemen's Civil Service Comm'n v. Kennedy, have judicial standing to challenge legislative regulation 514 S.W.2d 237 (Tex.1974). The Legislature, in section of property in the same manner or to the same degree six of the Antiquities Code, has delegated authority to the as owners of private property. The judicial touchstone is Antiquities Committee to protect that which it deems worthy arbitrariness. Management of property held in the public of protection. The Antiquities Committee is made a final trust is a matter of legislative concern. Cf., Note, Proprietary checkpoint prior to possible effacement of property deemed Duties of the Federal Government Under the Public Land by the Legislature to be of intangible value. The legislative Trust, 75 Mich.L.Rev. 586, 592-94 (1977). decision that property held by its political subdivisions may not be altered when such alteration would efface the Turning now specifically to section six of the Antiquities property's historical integrity is not a decision with which Code, it becomes apparent to me that it effects no diversion the courts should interfere. If *935 the plurality intends to of College District property in a manner prohibited by Milam hold, under Love v. City of Dallas that historical preservation County and Love. The mere fact that “State archeological is such a wholly incompatible use of property acquired for landmarks” are declared to be the “sole property of the State” educational purposes so as to constitute an unlawful diversion gives rise to no justiciable complaint on the part of the local

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and absent arbitrary legislative action, the courts cannot and of a public trust, it would be difficult to discern any situation should not interfere with the manner in which the Legislature in which historical preservation would not be antipathetic conducts its affairs. to the public trust. I can see no operative distinction between property acquired for educational purposes and I would not in this case reach the questions of vagueness property acquired for, say, a City Hall, a courthouse or a discussed by four members of the Court. Such questions park. Indeed, such a holding is tantamount to a judicial should, and will be raised at such time as this Court is faced declaration that no property held by a political subdivision with governmental interference with private property under can be protected under the legislative banner of historical the banner of historical preservation. But in reply I do point preservation unless the property originally was acquired for out that this Court very recently stated that the protection of its aesthetic characteristics, or unless the Legislature takes the cultural property may indeed be a duty of the Legislature. San property by exercise of eminent domain. I would hold that Antonio Conservation Soc'y, Inc. v. City of San Antonio, 455 restriction of the use of College District property in order S.W.2d 743, 748 (1970). Not every historical structure worthy to protect that property's aesthetic integrity does not deprive of protection can be an Alamo; vagueness in describing the local public of the benefit of the property to the degree cultural property may to a degree be an inherent difficulty. prohibited by Love and Milam County. In imposing a higher, general trust upon property held by political subdivisions in I would reverse the district court's judgment and dissolve the the public trust, the Legislature acted within its authority. injunction. When such is the case, the remedy lies in the legislative process, not in the courts. See Henkin, Is There a “Political DANIEL, JOHNSON and YARBROUGH, JJ., join in this Question” Doctrine ? 85 Yale L.J. 597 (1976). This is a dissent. dispute between different departments of the same branch of government. The “boss” of that branch, the Legislature, All Citations has decided that one department's power exceeds the other's. As long as no specific constitutional provision is violated, 554 S.W.2d 924, 18 A.L.R.4th 973

Footnotes 1 Sec. 10. The Antiquities Committee shall be authorized to issue permits to other state agencies or institutions and to qualified private institutions, companies, or individuals for the taking, salvaging, excavating, restoring, or the conducting of scientific or educational studies at, in, or on State Archeological Landmarks as in the opinion of the Antiquities Committee would be in the best interest of the State of Texas. Such permits may provide for the retaining by the permittee of a portion of any recovery as set out for contracting parties under Section 9 hereof. Such permit shall provide for the termination of any rights in the permittee thereunder upon the violation of any of the terms thereof and to be drafted in compliance with forms approved by the Attorney General. All such permits shall specifically provide for the location, nature of the activity, and time period covered thereby. No person, firm, or corporation shall conduct any such operations on any State Archeological Landmark herein described without first obtaining and having in his or its possession such permit at the site of such operation, or conduct such operations in violation of the provisions of such permit. * The Court stated: Since the Constitution, art. 7, sec. 3, contemplates that districts shall be organized and taxes levied for the education of scholastics within the districts, it is obvious that the education of nonresident scholastics is not within their ordinary functions as quasi-municipal corporations; and under the authorities cited the Legislature is without power to impose such an obligation on them, without just compensation. 120 Tex. at 367, 40 S.W.2d at 27.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)

of the court of appeals and affirm the judgment of the trial court. 665 S.W.2d 446 Supreme Court of Texas. The Texas Health Facilities Commission is the Texas TEXAS HEALTH FACILITIES administrative agency charged with governing the availability COMMISSION et al., Petitioner, of health care facilities in this state. See Health Planning v. and Development Act, Tex.Rev.Civ.Stat.Ann. art. 4418h, §§ 1.01–6.04 (HPDA). The Commission's primary function is CHARTER MEDICAL–DALLAS, INC., Respondent. to prevent the development of new health care facilities No. C–2478. | Feb. 15, 1984. with services that are not needed or that cannot feasibly be developed, staffed, or operated. This function is performed Appeal was taken from orders of the Health Facilities primarily by the Commission's administration of a state Commission granting certificates of need to two hospitals and certificate of need program. Id., § 2.06. Under this program, a denying certificate of need for another hospital. The 250th person proposing to establish or modify a health care facility Judicial District Court, Travis County, Charles D. Mathews, must obtain a certificate of need from the Commission. Id., J., sustained the Commission's order. On appeal, the Austin § 3.01. Court of Appeals, Third Supreme Judicial District, Powers, J., 656 S.W.2d 928, reversed and remanded with instructions, *449 In December of 1979 and January of 1980, the and appeal was taken. The Supreme Court, Barrow, J., held parties to this appeal filed applications seeking certificates that Commission's decision was supported by substantial of need for proposed projects. Memorial sought permission evidence and was not arbitrary or capricious. to convert a portion of its general hospital into psychiatric use; Healthcare proposed to construct a new facility, “Green Court of Appeals reversed and trial court affirmed. Oaks;” and Charter Medical applied for permission to construct “Dallas Psychiatric Hospital.” All three projects were planned for the area encompassing north Dallas Attorneys and Law Firms County and Collin County. These three applications were consolidated by the Commission, and a hearing was held to *448 Jim Mattox, Atty. Gen., Steven L. Martin, Asst. Atty. determine whether one or more of the applications should be Gen., Austin, Law Offices of Earl Luna, Mary Mildord, granted. The Commission rendered its orders in October of Dallas, Heath, Davis & McCalla, Dudley D. McCalla, Austin, 1980 granting certificates of need to Healthcare and Memorial for petitioner. and denying the application of Charter Medical. Wood, Lucksinger & Epstein, Bruce Bigelow, Austin, Trotter, Bondurant, Miller and Hishon, Glen A. Reed, The trial court rendered judgment sustaining the orders of Atlanta, Ga., for respondent. the Commission as to all three applications. This judgment was reversed by the court of appeals and the cause remanded Opinion to the Commission. The stated reason for the court of appeals' decision is that the Commission's orders contain BARROW, Justice. insufficient underlying (basic) facts to support the ultimate This is an appeal from three consolidated orders of petitioner findings or conclusions of the Commission on the three Texas Health Facilities Commission. The orders of the applications. The court of appeals held that the absence of Commission granted certificates of need to petitioners underlying facts rendered the Commission's ultimate findings Healthcare International and Memorial Hospital of Garland arbitrary and capricious. The court of appeals remanded all and denied a similar request made by respondent Charter three applications to the Commission since the Commission's Medical-Dallas, Inc. The action of the Commission was denial of Charter Medical's request may have been based upon upheld by the trial court. The court of appeals, with one the granting of the other two applications. justice dissenting, reversed the judgment of the trial court and remanded the cause to the Commission for further In reaching its decision, the court of appeals set forth a lengthy proceedings. Charter Medical-Dallas, Ins. v. Texas Health recitation of the facts and Commission rules applicable to this Facilities Com'n, 656 S.W.2d 928. We reverse the judgment appeal; we refer the reader to that opinion for a more complete

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statement on these matters. We limit our discussion to the The Commission has promulgated “General Criteria for Use specific points properly before this Court and upon which we in Certificate of NeedReviews” *450 that incorporate both base our decision. the factors required by subsection 3.10(b) and the factors that the legislature has directed the Commission to “consider.” 1 This administrative appeal arises under the authority of These criteria include thirteen broad categories addressing the HPDA in conjunction with the Texas Administrative such matters as “Community Health Care Requirements,” Procedure and Texas Register Act. Tex.Rev.Civ.Stat.Ann. “Service Area Population,” and “Relationship to Existing art. 6252–13a (APTRA). Under the legislative scheme of the Services and Existing Facilities.” APTRA, the manner of review of agency actions is governed by the enabling statute in the area under adjudication. Under these broad, general categories are approximately APTRA, § 19(e); Southwestern Bell Telephone Co. v. fifty-four subcategories or factors that the Commission Public Utility Commission, 571 S.W.2d 503, 508 (Tex.1978). considers relevant to its decision on the ultimate factors. Section 1.04 of the HPDA incorporates the APTRA “except These subcategories are referred to by the court of appeals as to the extent inconsistent with” the HPDA. Therefore, the “intermediate facts.” The findings of the Commission on the scope of judicial review in this case must be discerned from totality of these criteria form the basis of the Commission's both the HPDA and the APTRA. decision to grant or deny a certificate of need. “An applicant or party who is aggrieved by an order of the commission ... In determining the role of the reviewing court, we must first is entitled to judicial review under the substantial evidence ascertain the legislative standards to which the Commission rule.” HPDA, § 3.15. must adhere in making its decisions, i.e., what findings and conclusions the Commission must make before it properly Having determined the prerequisites to agency action under may grant a certificate of need. Subsection 3.10(a) of the HPDA, we look to the APTRA to determine its guidelines the HPDA requires the Commission to promulgate rules for judicial review. Section 16(b) of the APTRA states: “A establishing criteria to determine whether an applicant is to be final decision must include findings of fact and conclusions of issued a certificate of need for a proposed project. Subsection law, separately stated. Findings of fact, if set forth in statutory 3.10(b) sets forth five specific factors that must be included language, must be accompanied by a concise and explicit among the Commission's criteria: statement of the underlying facts supporting the findings.” The exact manner of judicial review is stated in section 19(e): Criteria established by the commission must include at least the following: The scope of judicial review of agency decisions is as provided by the law under which review is sought.... Where (1) whether a proposed project is necessary to meet the the law authorizes review under the substantial evidence healthcare needs of the community or population to be rule, ... the court may not substitute its judgment for that served; of the agency as to the weight of the evidence on questions (2) whether a proposed project can be adequately staffed committed to agency discretion but may affirm the decision and operated when completed; of the agency in whole or in part and shall reverse or remand the case for further proceedings if substantial (3) whether the cost of a proposed project is economically rights of the appellant have been prejudiced because feasible; the administrative findings, inferences, conclusions, or decisions are: (4) if applicable, whether a proposed project meets the special needs and circumstances for rural or sparsely (1) in violation of constitutional or statutory provisions; populated areas; and (2) in excess of the statutory authority of the agency; (5) if applicable, whether the proposed project meets special needs for special services or special facilities. (3) made upon unlawful procedure;

Thereafter, subsection 3.10(c) contains six factors that the (4) affected by other error of law; Commission “shall consider” in developing its criteria.

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accompanied by a concise and explicit (5) not reasonably supported by substantial evidence in statement of the underlying facts. view of the reliable and probative evidence in the record as a whole; or Gonzales County, 474 S.W.2d at 457. We went on to explain that, generally, statutory findings are broadly stated and (6) arbitrary or capricious or characterized by abuse of require discretion or judgment on the part of the agency discretion or clearly unwarranted exercise of discretion. based on a multitude of factors. Conversely, non-statutory findings usually are more factual in nature and carry with The above-quoted portions of the APTRA are the primary them the supporting underlying facts. Thus, the latter need no guidelines to be used by a court in reviewing the actions of accompanying facts to support them. administrative agencies.

Judicial review would be enhanced if all general conclusions In this case, there are allegations challenging the adequacy of an agency were accompanied by a statement of underlying of the Commission's findings of fact, contending that the facts. The plain language of the statute, however, precludes Commission's action is not supported by substantial evidence, such a construction of section 16(b). By limiting the fact- and asserting that the Commission's orders are arbitrary and finding requirement to findings “set forth in statutory capricious. The court of appeals purported to base its decision language,” the legislature has expressed its intention in solely on the conclusion that the Commission's findings of this matter. We may not impose an additional fact-finding fact are arbitrary and capricious. In its opinion, however, requirement under the guise of statutory construction. Cf. the intermediate court touched upon each of the above three Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154, 158 contentions. Hence, we shall address each of these matters. (1960).

Gonzales County holds that an accompanying statement of Findings of Fact underlying facts is required when an ultimate finding of fact embodies statutory language. This construction has been [1] The logical first step in evaluating the Commission's followed in post-APTRA cases. See, e.g., Gage v. Railroad order is to examine the agency's fact findings to determine Commission, 582 S.W.2d 410, 414 (Tex.1979); Imperial whether they meet the statutory requirements. See Auto American Resources Fund, Inc. v. Railroad Commission, 557 Convoy Co. v. Railroad Commission, 507 S.W.2d 718, 719 S.W.2d 280, 286 (Tex.1977). Therefore, we hold that section (Tex.1974). Section 16(b) of the APTRA requires that all 16(b) of the APTRA requires an accompanying statement of findings of fact, “if set forth in statutory *451 language,” underlying facts only when the ultimate fact finding embodies must be accompanied by a supporting statement of underlying a mandatory fact finding set forth in the relevant enabling facts. We must determine the meaning of these words in the act. 2 An agency may not avoid this statutory requirement present context. by simply rewording its criteria; section 16(b) extends to all statutory fact findings that represent the criteria that the In Lewis v. Gonzales County Savings and Loan Association, legislature has directed the agency to consider in performing 474 S.W.2d 453 (Tex.1971), we were asked to construe an its function. analogous fact-finding requirement in the Savings and Loan Act. Tex.Rev.Civ.Stat.Ann. art. 852a, § 11.11(4). Therein, we [2] [3] [4] The characteristics of proper findings of fact, held: as well as their purposes, are well established. Valid findings We are of the view this requirement of fact must be clear and specific. Gage, 582 S.W.2d at 414. applies only to findings of fact in the A mere conclusion or a recital of evidence is inadequate. commissioner's orders which are “set Thompson v. Railroad Commission, 150 Tex. 307, 240 forth in statutory language.” [footnote S.W.2d 759, 761–62 (1951). The required underlying facts omitted]. When findings are made may not be presumed from findings of a conclusional nature. in the language of the Rules and Morgan Drive Away, Inc. v. Railroad Commission, 498 Regulations that do not embody S.W.2d 147, 152 (Tex.1973). In general, underlying findings statutory language, they need not be of fact must be such that the reviewing court can fairly and reasonably say that the underlying findings support the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)

statutorily required criteria. Railroad Commission v. Entex, there are sufficient findings such that we can fairly and Inc., 599 S.W.2d 292, 298 (Tex.1980); Railroad Commission reasonably say that the underlying or basic facts support v. Graford Oil Corp., 557 S.W.2d 946, 950 (Tex.1977). the Commission's conclusions on the ultimate or statutory criteria. We hold, therefore, that the underlying findings of The underlying findings of fact required by the APTRA have fact made by the Commission satisfy the requirements of a substantial statutory purpose and are more than a technical section 16(b) of the APTRA. prerequisite. *452 Morgan Drive Away, Inc., 498 S.W.2d at 150. This Court set forth the purposes of such findings of fact in Miller v. Railroad Commission, 363 S.W.2d 244, 245– The Substantial Evidence Rule 46 (Tex.1962) as follows: [8] [9] The APTRA codifies the principle of judicial One purpose no doubt is to restrain any review under the substantial evidence rule. Section 19(e)(5) disposition on the part of the [agency] authorizes a reviewing court to test an agency's findings, to grant a certificate without a full inferences, conclusions, and decisions to determine whether consideration of the evidence and a they are reasonably supported by substantial evidence in serious appraisal of the facts. Another view of the reliable and probative evidence in the record is to inform protestants of the facts as a whole. See Railroad Commission v. Shell Oil Co., 139 found so that they may intelligently Tex. 66, 161 S.W.2d 1022, 1029–30 (1942). In applying the prepare and present an appeal to the test, the court is prohibited from substituting its judgment courts. Still another is to assist the for that of the agency as to the weight of the evidence courts in properly exercising their on questions committed to agency discretion. See Gerst v. function of reviewing the order. Guardian Savings and Loan Association, 434 S.W.2d 113, 115 (Tex.1968). The reviewing court may reverse an agency [5] [6] This Court has neither the right nor the authority decision because of the absence of substantial evidence only if to lay out a precise form of findings to be made by the such absence has prejudiced substantial rights of the litigant. Commission. Id. at 246. On the other hand, we may make APTRA, § 19(e). suggestions as to the form of the agency record in the interest of proper judicial review. See Graford Oil Corp., 557 [10] [11] [12] Although substantial evidence is more than S.W.2d at 952 n. 6. Proper underlying (basic) findings of fact a mere scintilla, Alamo Express, Inc. v. Union City Transfer, should follow the guidelines we previously have noted: they 158 Tex. 234, 309 S.W.2d 815, 823 (1958), the evidence in should be clear, specific, non-conclusory, and supportive of the record actually may preponderate against the decision of the ultimate statutory finding. Mere recitals of testimony or the agency and nonetheless amount to substantial evidence. references to or summations of the evidence are improper. Lewis v. Metropolitan Savings and Loan Association, 550 Such findings should be stated as the agency's findings. The S.W.2d 11, 13 (Tex.1977). The true test is not whether the findings should relate to material basic facts and should relate agency reached the correct conclusion, but whether some to the ultimate statutory finding that they accompany. In reasonable basis exists in the record for the action taken by general, the findings of fact required by APTRA § 16(b) the agency. Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966). should be sufficient to serve the overall purposes evident in A reviewing court is not bound by the reasons given by an the legislative requirement that they be made. agency in its order, provided there is a valid basis for the action taken by the agency. *453 Railroad Commission v. [7] The record of this case discloses that the Commission City of Austin, 524 S.W.2d 262, 279 (Tex.1975). Thus, the made almost five hundred findings of fact covering agency's action will be sustained if the evidence is such that approximately forty-eight pages. The orders of the reasonable minds could have reached the conclusion that Commission includes ultimate findings on each of the the agency must have reached in order to justify its action. criteria required by HPDA section 3.10(b). In addition, the Suburban Utility Corp. v. Public Utility Commission, 652 Commission's findings contain numerous underlying facts in S.W.2d 358, 364 (Tex.1983). support of these statutory findings. Many of these findings do not satisfy the requirements previously stated since they [13] The findings, inferences, conclusions, and decisions are nothing more than recitals of evidence. Nevertheless, of an administrative agency are presumed to be supported

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by substantial evidence, and the burden is on the contestant We do admonish the Commission to adhere to the guidelines to prove otherwise. Imperial American Resources Fund, Inc. we have set forth previously regarding findings of fact. v. Railroad Commission, 557 S.W.2d 280, 286 (Tex.1977). Hence, if there is evidence to support either affirmative or Our second inquiry concerns whether the findings, inferences, negative findings on a specific matter, the decision of the and conclusions that relate to health care needs are supported agency must be upheld. Gerst v. Goldsbury, 434 S.W.2d 665, by substantial evidence. We hold that they are. Our 667 (Tex.1968); see also Lewis v. Jacksonville Building and conclusion is based upon the principles of judicial review that Loan Association, 540 S.W.2d 307, 311 (Tex.1976). we have reiterated herein. As required by APTRA section 19(e), we have tested each material finding, inference, and [14] The record before this Court is extensive and contains conclusion for evidentiary support. There is in the record substantial information relevant to the Commission's inquiry. substantial evidence to support the underlying facts discussed This controversy was hotly contested, and the record contains above and the ultimate fact to which they relate. evidence favoring all three applicants. We will address one statutory criterion that supports the Commission's decision in this case. Under HPDA section 3.10(b)(1), the Commission Arbitrary and Capricious Standard of Review considers “whether a proposed project is necessary to meet the healthcare needs of the community or population to be [15] The court of appeals held that the validity of an served....” The Commission found that Memorial and Green agency's inferences of ultimate facts or its reasoning process Oaks were necessary, but that Charter Medical was not. is judged by whether such inferences are arbitrary *454 and capricious. The court also concluded that the sole purpose On judicial review, we look first to the underlying findings of of the substantial evidence rule is to measure the validity fact made in support of the ultimate finding of fact contrary of the process by which the agency has inferred stated to Charter Medical's position. Factors unfavorable to Charter basic facts from the evidence and matters officially noticed. Medical include the following: Charter Medical would not Our discussion of the substantial evidence rule discloses the be near or connected with a general hospital and ambulance erroneous nature of these conclusions. Because the court service would be required to transfer a patient to a general of appeals has, in effect, engaged in a substantial evidence hospital for medical treatment; Charter Medical was not review of the Commission's order, we also have addressed accessible by public transportation; Charter Medical failed to that point. We now turn to a discussion of the arbitrary and establish physician interest in its facility similar to the interest capricious standard of review. expressed in the other two facilities by testifying physicians; and Charter Medical failed to support its projected occupancy Throughout the long history of the substantial evidence rates with competent evidence. Findings on these matters rule the existence of substantial evidence has been equated were relatively more favorable regarding both Memorial with fair and reasonable conduct on the part of the and Green Oaks. Other material findings concerned the agency. Conversely, agency decisions that are unsupported probable absence of certain recreational facilities at Charter by substantial evidence have been deemed arbitrary and Medical, the unnecessary duplication of specified services capricious. Thus, the two terms have many times been and equipment by Charter Medical, and the negative report on considered two sides of the same coin. See, e.g., Benson Charter Medical by the Texas Area 5 Health Systems Agency. v. San Antonio Savings Association, 374 S.W.2d 423, 427 (Tex.1963); City Savings Association v. Security Savings Because the Commission correctly found that Charter and Loan Association of Dickinson, 560 S.W.2d 930, 932 Medical failed to establish that its facility was necessary to (Tex.1978). On the other hand, cases have arisen in which a meet the healthcare needs of the community, as required by line of demarcation was drawn between these two concepts. the statute, the Commission's order must be upheld. Cf. Gerst v. Goldsbury, 434 S.W.2d at 667. We note that many of the In Lewis v. Metropolitan Savings and Loan Association, Commission's 213 findings on this criterion are improper and 550 S.W.2d 11 (Tex.1977), this Court was faced with an irrelevant and were not considered by this Court. Moreover, allegation that the agency action in question, in admitting and we doubt the sufficiency of other ultimate findings made by excluding evidence, had resulted in a denial of due process of the Commission, although we reach no conclusion thereon. law. The agency contended that the only issue on appeal was whether the decision was supported by substantial evidence;

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or constitutes an abuse of discretion although that conduct a denial of due process would not provide a basis for reversal does not amount to a violation of any other provision of so long as the agency's decision was upheld under substantial the APTRA or the agency's enabling act. The arbitrary and evidence scrutiny. We held that instances may arise in which capricious standard of review historically has been construed the agency's action is supported by substantial evidence, but narrowly, and we do not think that the legislature intended is arbitrary and capricious nonetheless. One such instance is it to be interpreted as a broad, all-encompassing standard when a denial of due process has resulted in the prejudice of for reviewing the rationale of agency actions. Under the substantial rights of a litigant. foregoing definition of the arbitrary and capricious standard of review, we hold that the Commission's orders in this case Another example of arbitrary action by an agency is Railroad are not arbitrary nor do they constitute an abuse of discretion. Commission v. Alamo Express, 158 Tex. 68, 308 S.W.2d 843 (1958). Therein, this Court found that the agency had acted We conclude that the findings of fact made by the in an arbitrary manner when it failed totally to make findings Commission comply with section 16(b) of the APTRA. of fact and instead based its decision on findings in another The Commission's findings, inferences, conclusions, and case. Arbitrary and capricious agency action also may be decisions are supported by substantial evidence and do not found when an agency improperly bases its decision on non- constitute an abuse of discretion. statutory criteria. Public Utility Commission v. South Plains Electric Cooperative, Inc., 635 S.W.2d 954, 957 (Tex.App. The judgment of the court of appeals is reversed, and the —Austin 1982, writ ref'd n.r.e.). judgment of the trial court is affirmed. In enacting the APTRA, it is clear that the legislature intended to distinguish between agency action that is not supported All Citations by substantial evidence and agency action that is arbitrary and capricious. We construe section 19(e)(6) of the APTRA 665 S.W.2d 446 to be a safeguard against agency conduct that is arbitrary

Footnotes 1 The matters required by section 3.10(b) to be included within the Commission's criteria may be found primarily in subsections 513.5, 513.11, 513.13, and 513.17 of Title 25 of the Texas Administrative Code. The non-mandatory factors are scattered throughout the other subsections of section 513. See Tex. Health Fac. Comm'n, 25 Tex.Admin.Code §§ 513.1–513.21 (May 1, 1982) (compiling Tex. Health Fac. Comm'n Rules 315.19.01.010 to .130, 3 Tex.Reg. 1361–64 (1978), as amended 4 Tex.Reg. 2949–50 (1979)). 2 The HPDA does not require that the Commission make findings on certain factors before it may act; rather, the statute directs the Commission to include certain matters within its criteria for review and directs the Commission to act upon applications within established time limits. HPDA, §§ 3.10, 3.11. Nonetheless, the factors that the Commission must include among its criteria are the type of factors that fall within the scope of section 16(b) so that these findings of fact must be accompanied by a statement of underlying facts. Cf. Miller v. Railroad Commission, 363 S.W.2d 244, 245 (Tex.1962).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013) 2013 WL 3771302

sufficiency of the evidence to support the judgment. Finally, Walker questions the composition and conduct of the jury. 2013 WL 3771302 We affirm the trial court's judgment. Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. Background MEMORANDUM OPINION Doreatha Walker was hired as Head Start Director on a Court of Appeals of Texas, one-year probationary contract. In February 2009, several Houston (1st Dist.). months into her tenure and after concerns were raised about high levels of mold in the Head Start building, District Doreatha WALKER, Appellant Superintendent Dr. Michael Bergman held a meeting with v. Head Start staff and parents to clarify the progress that had HITCHCOCK INDEPENDENT been made on addressing the mold problem. A few days later, SCHOOL DISTRICT, Appellee. Walker filed a workers' compensation form indicating she would be going on leave for mold-related health reasons. She No. 01–11–00797–CV. | July 16, 2013. also filed a grievance against Bergman for allegedly yelling at On Appeal from the 405th District Court, Galveston County, her during the meeting, although no one present at the meeting Texas, Trial Court Case No. 09–CV–1439. remembered his doing so.

Attorneys and Law Firms For the rest of February and most of March, Walker was absent on medical leave. Although absent, she continued to Doreatha Walker, pro se. email Bergman and Head Start board members about the mold issue and her fear of losing her job in retaliation for Christopher B. Gilbert, for Hitchcock Independent School reporting the issue. In early March, days before her contract District. was eligible for renewal, she threatened Bergman with a Panel consists of Justices KEYES, MASSENGALE, and wrongful termination suit if the board did not vote to extend BROWN. her employment as Head Start director. Despite concerns that Walker was not getting along well with Head Start board members and District personnel, Bergman recommended MEMORANDUM OPINION Walker's employment be extended for another year. The next day Walker rescinded her grievance against Bergman. MICHAEL MASSENGALE, Justice. A few weeks later, Walker attempted to return to work at *1 Appellant Doreatha Walker sued the Hitchcock the Head Start building. However, Bergman had directed Independent School District for suspending her and her not to return to work because her medical leave form recommending termination from her job as Head Start stated that she could not yet return to the Head Start building, Director. She contended that the District had retaliated against which was the only place she could perform her duties as her for reporting unsafe mold levels and other improprieties. director. When Walker nevertheless arrived on campus, an The jury found that Walker had not made those reports in assistant superintendent directed her to leave on Bergman's good faith or that the reports were not the cause of her instructions. Walker refused to obey the directive, the police suspension and recommendation of termination. The trial were called, and she was escorted off the campus. After the court entered judgment in favor of the school district. incident, Walker informed Bergman that she felt the removal from campus was in retaliation for her raising the mold On appeal, Walker alleges that the trial court erroneously issue and again threatened to file suit if anyone attempted to charged the jury, improperly admitted evidence, incorrectly fire her. Bergman responded by warning Walker that further applied the res judicata doctrine, and unfairly imposed time unprofessional and insubordinate conduct would result in a limits during the trial. She also complains that her directed recommendation that her contract be terminated. verdict motion was improperly denied, and she challenges the

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*2 Walker's relations with Head Start board members and the Head Start building and for her allegations that the staff deteriorated throughout the following month. Rather District had improperly claimed Head Start students for state than heed Bergman's earlier advice to listen to others and transportation reimbursement. to cooperate with Head Start board members, Walker acted imperiously and took control of a Head Start board meeting— The trial court determined that the findings of the TEA a meeting which she attended only at the invitation of board hearing examiner and the education commissioner from the members. The next day the president of the Head Start policy termination appeal could be used in Walker's whistleblower board declared her refusal to attend any future meetings with suit. After a ten-day trial, two questions were submitted to the Walker. Then, after a meeting during which Walker verbally jury. Question One asked whether Walker's report of possible accosted her, the Head Start staff administrative assistant improprieties in how the District sought reimbursement for filed a harassment grievance against her. Subsequently, the transportation was made in good faith and was a cause for secretary of the Head Start policy board, a parent volunteer, Bergman's recommendation that she be terminated. Question resigned, followed by the early retirement of the Head Start Two asked whether Walker's reports of mold to health nurse a few weeks later. Each expressed frustration with agencies were made in good faith and were a cause of Walker as the reason for leaving. her suspension with pay. The jury answered “No” to both questions, and the trial court entered judgment in favor of the Soon thereafter, on May 1, Bergman suspended Walker District. Walker then filed this appeal. by placing her on administrative leave with pay. He was concerned about her failure to obey directives, her insubordination, and the grievances and resignations of Head Analysis Start volunteers and staff. Two days later, Walker filed a report with the Texas Education Agency alleging the *3 Pro se litigants must comply with all applicable laws District was claiming Head Start students for reimbursement and rules of procedures, and they are held to the same of transportation services that the District never provided. standards as are licensed attorneys. See Mansfield State After a District board meeting at which Bergman failed Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.1978); Kanow to recommend that the board renew her contract, Walker v. Brownshadel, 691 S.W.2d 804, 806 (Tex.App.-Houston filed another grievance against Bergman. She alleged that [1st Dist.] 1985, no writ). A pro se litigant is required Bergman had retaliated against her for making whistleblower to properly present her case on appeal, and we do not reports about the alleged violations of transportation make allowances or apply different standards for litigants reimbursement rules and her mold complaints. appearing without the advice of counsel. See Morris v. Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex.App.- Three months later, the District board accepted Bergman's Houston [1st Dist.] 2011, no pet.). The Rules of Appellate recommendation to terminate Walker's contract. Walker Procedure require appellate briefs to contain clear and concise appealed the termination to the TEA. After a hearing, arguments with appropriate citations to the record and the TEA hearing examiner agreed with the District's supporting authorities. TEX.R.APP. P. 38.1(i). Nevertheless proposed termination, documenting Walker's failure to follow we construe briefs liberally, and substantial compliance with directives, disrespect for authority, and imperious tone with the rules is sufficient. SeeTEX.R.APP. P. 38.9. superiors, subordinates, and parent volunteers. Thereafter, the District board officially terminated Walker. The Texas In her brief, Walker raises 29 points of error. Many of these Commissioner of Education upheld the termination. lack supporting authority or citations to the record. Other points refer to hundreds or thousands of pages from the After the board agreed to terminate her contract, Walker record, which does not substantially comply with the briefing filed suit against the District. She represented herself at rules. See Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d all stages of the trial court proceedings. She alleged that 197, 200–01 (Tex.1955) (holding that it is not the duty of her May 1 suspension violated the Texas Whistleblower the courts of appeals to independently search a voluminous Act, TEX. GOV'T CODE ANN. §§ 554.001–.010 (West record to find evidence in support of a theory); Labrador Oil 2012). She alleged that Bergman violated the Whistleblower Co. v. Norton Drilling Co., 1 S.W.3d 795, 803 (Tex.App.- Act because he had suspended her for complaining to the Amarillo 1999, no pet.). Many of the points of error are local, state, and federal health agencies about the mold in duplicative or incapable of being distinguished from other

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points of error. But construing Walker's brief liberally, we placing burden of proof on public-employee plaintiff). To discern seven main issues. Walker complains of (1) error in meet the causation requirement, the employee is not required the jury charge, (2) incorrect application of the res judicata to show that her reports of illegal conduct were the sole doctrine, (3) improper admission of evidence, (4) unfair time reason for the employer's adverse action. Tex. Dep't of Human limits imposed during the trial, (5) denial of her directed Servs. v. Hinds, 904 S.W.2d 629, 634 (Tex.1995). Instead, verdict motion, (6) the sufficiency of the evidence to support she must present some evidence that “but for” her reports, the judgment, and (7) the composition and conduct of the jury. the employer's suspension or termination would not have occurred when it did. Id. at 636;see also Zimlich, 29 S.W.3d at 68. I. Jury charge Walker challenges the jury charge and instructions. She In this case the trial court submitted two Whistleblower argues that the jury should have had more instructions about Act questions based on the Texas Pattern Jury Charge. The the causation element of her whistleblower claim, including questions asked the jury if Walker's reports to the authorities a specific instruction that an incorrect but good faith belief were made in good faith and were a cause of her suspension that a law was violated is sufficient for a whistleblower and the recommendation of termination. 1 Walker requested claim. She also argues that the instruction for actual damages an alternate charge that included slightly different wording, should have used her preferred wording, and that the damages left out the good-faith element in the mold-report question, questions should have included an option for the jury to award injunctive relief reinstating her to her former position. and omitted the good-faith instruction. 2 However, Walker does not explain how the questions that were in the charge We review a trial court's decision to submit or refuse a were incorrect or resulted in the rendition of an improper particular jury instruction for abuse of discretion. In re judgment. See Shupe, 192 S.W.3d at 579–80 (explaining V.L.K., 24 S.W.3d 338, 341 (Tex.2000). The trial court how even improper instructions are harmless when there are has considerable discretion to determine proper instructions. answers sufficient to support the judgment). Id. An appellate court will not reverse a judgment for charge error unless that error “probably caused the rendition The trial court acted within its discretion. The broad-form of an improper judgment” or “probably prevented the charge used in this case is appropriate for whistleblower petitioner from properly presenting the case to the appellate cases. See Zimlich, 29 S.W.3d at 68, 71 (upholding a jury courts.”Thota v. Young, 366 S.W.3d 678, 687 (Tex.2012) verdict using a broad-form submission). The charge includes (citing TEX.R.APP. P. 44.1(a)). When the findings of the good-faith and causation elements, while Walker's the jury are sufficient to support the judgment, error in proposed question on her report about mold lacked the good- omitting an issue is harmless. Shupe v. Lingafelter, 192 faith element required by the Whistleblower Act. SeeTEX. S.W.3d 577, 579 (Tex.2006). The trial court should refuse to GOV'T CODE ANN. § 554.002; Levingston, 221 S.W.3d submit unnecessary instructions even if they represent correct at 226.Her mold question also unnecessarily required that statements of the law. Rigdon Marine Corp. v. Roberts, 270 she establish that the mold reports were “the” cause of S.W.3d 220, 228 (Tex.App.-Texarkana 2008, pet. denied); her suspension, rather than merely “a” cause. See Hinds, Riggs v. Sentry Ins., 821 S.W.2d 701, 704–05 (Tex.App.- 904 S.W.2d at 634–36 (holding that the employee is not Houston [14th Dist.] 1991, writ denied). required to prove making a report was the sole cause of the employer's adverse action). Thus, the trial court did not abuse its discretion in not adopting Walker's proposed charge. a. Liability questions *4 To prove a claim under the Whistleblower Act, a public For the first time on appeal, Walker also complains that employee must demonstrate that she reported a violation of the submitted charge was incorrect because it omitted law in good faith and that the adverse employment action additional instructions on causation and definitions from by the employer would not have occurred had the report not the Whistleblower Act. Preservation of the issue of an been made. City of Houston v. Levingston, 221 S.W.3d 204, omitted instruction, however, requires that the appellant 226 (Tex.App.-Houston [1st Dist.] 2006, no pet.)(citing City tender a written request to the trial court for submission of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.2000)); of the instruction that is “in substantially correct wording.” see alsoTEX. GOV'T CODE ANN. §§ 554.002, 554.004 SeeTEX.R. CIV. P. 278; Union Pac. R.R. Co. v. Williams, (West 2012) (requiring good faith report to authorities and 85 S.W.3d 162, 166 (Tex.2002); see alsoTEX.R.APP. P.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013) 2013 WL 3771302

33.1(a) (preserving a complaint for appellate review requires the complaint be made to the trial court). Because Walker Collateral estoppel, also known as issue preclusion, prevents did not submit a request for these additional instructions or relitigation of particular issues already resolved in a prior definitions to the trial court, she has failed to preserve her suit. Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., complaint for appellate review. 837 S.W.2d 627, 628 (Tex.1992). A party asserting collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the b. Damages question first action, (2) those facts were essential to the judgment in *5 Walker next complains that the damages section of the first action, and (3) the parties were cast as adversaries the jury charge did not include an option for reinstatement in the first action. John G. & Marie Stella Kenedy Mem'l and misstated the proper standard for actual damages. These Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex.2002); Houtex complaints fail to demonstrate harm, because any alleged Ready Mix Concrete & Materials v. Eagle Constr. & Envtl. error with respect to damages did not affect the rendition Servs., L.P., 226 S.W.3d 514, 519 (Tex.App.-Houston [1st of the judgment against Walker when the jury did not find Dist.] 2006, no pet.). To invoke collateral estoppel on the in her favor for liability. See Thota, 366 S.W.3d at 686–87; basis of a prior administrative order, a party must show the Shupe, 192 S.W.3d at 579–80;see also City of Brownsville administrative agency was acting in a judicial capacity and v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995) (noting an had jurisdiction to resolve the disputed issues of fact, which improper question is immaterial and harmless when the the parties had an adequate opportunity to litigate. In re answer cannot alter the effect of a verdict). Walker also cannot Edwards Aquifer Auth., 217 S.W.3d 581, 588 (Tex.App.-San complain of the actual-damages measure because the trial Antonio 2006, no pet.). court adopted her proposed measure of damages. SeeTEX.R. CRV. P. 274 (requiring a party disputing the charge to point *6 The TEA has jurisdiction over an educator's disputed out distinctly the objectionable matter for each part of the employment contract, as the agency has jurisdiction over charge the party objects to); In re A.V., 113 S.W.3d 355, 362– disputes involving any person aggrieved by the actions of 63 (Tex.2003). any board of education. Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 831 (Tex.App.-Dallas 1994, writ For the foregoing reasons, we overrule Walker's points of denied). Since the agency issued a final decision after Walker error 1, 2, 11–14, 17, 19, and 23. and the District had an adequate opportunity to fully and fairly litigate her termination, the hearing examiner's findings were binding on the trial court. See id.; see also Mullinax v. II. Collateral estoppel Texarkana Indep. Sch. Dist., 252 F.3d 1356 (5th Cir.2001) Walker alleges that the District was allowed to use material (TEA hearing examiner's findings made in judicial capacity from her administrative proceedings while she was not and entitled to preclusive effect). that this was an improper application of the res judicata and collateral estoppel doctrines. 3 Before trial, Walker had The hearing examiner found that Walker was validly appealed her termination in administrative proceedings terminated due to her “intransigence, duplicity, and defiance before a TEA hearing examiner and commissioner of of authority” in almost every conflict between her and District education. Under the doctrine of collateral estoppel, the trial employees. The examiner catalogued the numerous disputes court allowed the parties to present the findings from the and incidents that took place in the spring of 2009 which administrative hearing, but not to dispute those findings. preceded Walker's suspension and termination. The course In the administrative action, it was found that Walker had of these events was relevant to the District's argument that increasingly poor relations with her superiors and other adults Walker's insubordination, not her whistleblowing, was the involved in the Head Start program in the months before cause of her suspension and ultimate termination. Because her suspension. The hearing examiner found that Walker's the issue of why she was terminated was fully and fairly policies and behavior violated several of her job requirements litigated in the administrative proceeding, the District was and described several incidents in which her attitude led entitled to the preclusive effect of those findings. Walker does to conflict, such as when she refused to leave the Head not indicate where in the record that the District did anything Start building and had to be escorted away by police. From more than reference the examiner's findings, as it was entitled these findings, the examiner concluded that the District was to do. Because she attempted to dispute the administrative authorized to terminate her probationary contract.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013) 2013 WL 3771302

findings, however, the trial court acted properly in stopping Start program. See, e.g., In re Bexar Cnty. Criminal Dist. her from relitigating the issue of why she was terminated. Attorney's Office, 224 S.W.3d 182, 188–89 (Tex.2007) Thus, the trial court did not err in its application of the (statements are admissible if offered for their effect on the collateral estoppel doctrine. listener rather than the truth of the matter asserted).

Accordingly, we overrule Walker's points of error 3, 5, 15, Walker also complains that the trial court prevented her from and 29. 4 pursuing a line of questioning into the District's alleged past retaliation against other employees. The trial court sustained the District's objection because the alleged retaliation was not III. Evidentiary rulings related to Walker's whistleblower claims. Walker does not Walker challenges several of the trial court's evidentiary indicate how this testimony would have altered the judgment rulings. She complains that the court refused to admit a in the case and we find any possible error to be harmless. newspaper article about mold in the Head Start building, and that it admitted several email messages offered by the District Because the trial court did not err in admitting or excluding over her hearsay objection. the evidence it did, and in any case no harm has been shown, we overrule Walker's points of error 6,7, 16, and 20. The inclusion and exclusion of evidence is committed to the trial court's sound discretion. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000). The party seeking to reverse IV. Time limits on questioning a judgment based on evidentiary error must prove that the Walker complains that the trial court admonished her to error probably resulted in an improper judgment, usually by speed up the presentation of her case, imposed time limits showing that the judgment turns on the particular evidence on the trial length, and shortened her time for questioning excluded or admitted. Id.;City of Brownsville, 897 S.W.2d at witnesses and presenting her deposition testimony. The trial 753–54.We review the entire record to determine whether the court has great discretion in the conduct of the trial.Dow complaining party has demonstrated that the judgment turns Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.2001). A on the particular evidence admitted. Bay Area Healthcare trial judge is afforded the discretion to express himself while Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007). controlling the trial. Bott v. Bott, 962 S.W.2d 626, 631 (Tex.App.Houston [14th Dist.] 1997, no pet.). A trial court With respect to the news reports unsuccessfully offered into may properly intervene to maintain control in the courtroom, evidence by Walker, newspaper articles that are offered to to expedite the trial, and to prevent what it considers to be a prove the truth of what the article is reporting are inadmissible waste of time.Francis, 46 S.W.3d at 241; Hoggett v. Brown, hearsay. TEX.R. EVID. 801(d); Deramus v. Thornton, 160 971 S.W.2d 472, 495 (Tex.App.-Houston [14th Dist.] 1997, Tex. 494, 333 S.W.2d 824, 831 (Tex.1960). Walker offered pet. denied); see also Landis v. N. Am. Co., 299 U.S. 248, them to prove that there was mold in the Head Start 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (a trial court has building-an inadmissible hearsay purpose. TEX.R. EVID. the inherent power to control the disposition of cases with 802. Because the articles were inadmissible hearsay, the trial economy of time and effort for itself, for counsel, and for court did not abuse its discretion in refusing their admission. litigants). The newspaper articles in question were also duplicative of facts in evidence. They show only that there was mold in the The trial court in this case acted within its authority Head Start building, which was an undisputed fact in this case. in managing the trial's time limits. The trial court often attempted to help Walker by encouraging her to speed up her *7 Walker complains that the trial court admitted several questioning to keep the jury's interest. The trial judge warned email messages to which she objected. The messages her that the trial was taking longer than anticipated and that were reports from several people involved in the Head he might have to impose time limits. When the trial court did Start program which included complaints about Walker's begin to impose time limits, it was to the detriment of the argumentativeness and strange behavior. The trial court did District's time for presenting its case in chief, not Walker's. not err in admitting these messages because they were offered Walker spent a vastly larger portion of the trial's length to prove that Bergman received reports of the contentiousness questioning witnesses than the District did. Critically, Walker and conflict caused by Walker's management of the Head identifies no particular instance when she was prevented from finishing an important line of questions or she was unable to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013) 2013 WL 3771302

present important evidence due to a time limit imposed by the 175, 176 (Tex.1986); Airgas–Sw., 390 S.W.3d at 478.The trial court. jurors are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. City of Keller, *8 Accordingly, we overrule points of error 8 and 24 to 27. 168 S.W.3d at 819.

To prove a claim under the Whistleblower Act, an employee V. Denial of Walker's request for directed verdict must prove by a preponderance of the evidence that the Walker complains that the trial court denied her motion for a retaliatory conduct by the employer would not have occurred directed verdict. Specifically, she argues that she should have when it did if the employee had not reported the violation had the opportunity to orally argue her motion, which was an of law. Zimlich, 29 S.W.3d at 67.There is a rebuttable opportunity afforded to the defendant but not to her. presumption that the report of a law violation caused the employee's termination or suspension if the termination or The record does not reflect that Walker was denied an suspension occurs no later than 90 days after the report. opportunity to argue her motion. The District was permitted TEX. GOV'T CODE ANN. § 554.004(a). If the employer to argue its motion for directed verdict orally, but Walker presents positive evidence to rebut the presumption that the submitted a written argument in support of her motion, so adverse employment action was due to the report, then the she did not need the opportunity to make an additional oral presumption of a causal connection between the report and argument. See Dillard v. Broyles, 633 S.W.2d 636, 645 termination or suspension is disregarded. Tex. A & M Univ. v. (Tex.App.-Corpus Christi 1982, writ ref'd n.r.e.) (Texas Rule Chambers, 31 S.W.3d 780, 784 (Tex.App.-Austin 2000, pet. of Civil Procedure 268 only requires specificity in directed denied). Then the employee must produce evidence to support verdict motions, and this can be met with an oral or written the contention that reporting the violation of law caused the argument). She also did not object to the trial court about employer to retaliate. Zimlich, 29 S.W.3d at 68. her argument being transmitted in writing rather than orally. SeeTEX.R.APP. P. 33.1. *9 The District presented ample evidence to rebut the presumption that Walker was suspended and recommended We overrule Walker's points of error 4, 9, and 10. for termination because she filed reports of safety and funding violations. In addition to numerous emails and letters describing Walker's poor working relationship with others VI. Sufficiency of the evidence associated with the Head Start program, numerous witnesses Walker argues the evidence was not legally and factually testified that she instigated conflict and problems as Head sufficient to support the jury verdict. In reviewing a verdict Start director. The jurors were able to weigh Bergman's for legal sufficiency, we “must view the evidence in the light testimony that he had not suspended Walker or recommended most favorable to the verdict, crediting favorable evidence if termination due to her filing the reports. See City of Keller, reasonable jurors could, and disregarding contrary evidence 168 S.W.3d at 819.The findings of the administrative hearing unless reasonable jurors could not.”City of Keller v. Wilson, examiner attested to the same problems with Walker's 168 S.W.3d 802, 807 (Tex.2005). If there is more than conduct. There was also evidence that Walker threatened a scintilla of evidence to support the challenged finding, to file suit against the District if she were fired, and then we must uphold it. Harris Cnty. v. Norris, 240 S.W.3d dropped the threat when Bergman recommended renewal of 255, 258 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) her contract. This supports the conclusion that Walker had (citing Formosa Plastics Corp. USA v. Presidio Eng'rs not necessarily filed the reports in good faith, but instead as & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998)). In a means of pressuring Bergman. reviewing a factual sufficiency complaint, we must first examine all of the evidence. Lofton v. Tex. Brine Corp., 720 Accordingly, there was sufficient evidence, both legally and S.W.2d 804, 805 (Tex.1986); Airgas–Sw., Inc. v. IWS Gas & factually, to support the jury's verdict that Walker was not Supply of Tex., Ltd., 390 S.W.3d 472, 478 (Tex.App.Houston suspended for whistleblowing. We overrule Walker's points [1st Dist.] 2012, pet. denied). After considering and weighing of error 18 and 22. all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Marine Overseas Corp. v. Ellis, 971 VII. Jury issues S.W.2d 402, 406–07 (Tex.1998); Cain v. Bain, 709 S.W.2d

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013) 2013 WL 3771302

SeeTEX.R.APP. P. 44.1. The alternate juror in this case was Walker questions the composition and conduct of the jury seated, not after the testimony of many of her witnesses as in her points of error 21 and 28. She alleges that the trial Walker alleges, but on the second day of trial and without court abused its discretion by seating an alternate juror, who objection from Walker. The jury verdict against Walker was was only seated after she had called most of her witnesses. unanimous, so even if the original juror had voted in her favor, Additionally, she questions the propriety of the jurors sending the judgment against her would stand. SeeTEX.R. CIV. P. 292 notes to the judge regarding the length of the trial. (allowing non-unanimous verdicts or unanimous verdicts by fewer than twelve jurors); Yanes v. Sowards, 996 S.W.2d 849, There is no requirement that the twelve original jurors 852 (Tex.1999) (upholding trial court's decision to proceed render the ultimate verdict with no substitutions. See Schlafly with trial and render judgment with only eleven jurors after v. Schlafly, 33 S.W.3d 863, 869–70 (Tex.App.-Houston dismissing juror due to his grandfather's illness). [14th Dist.] 2000, pet. denied) (noting neither the Texas Constitution nor the Texas Rules of Civil Procedure prevent *10 Accordingly, we overrule Walker's points of error 21 seating alternate jurors). Walker had the same opportunity and 28. to conduct voir dire on the alternate juror as on the original jurors, and she failed to object to seating the alternate juror during the trial. See id.(considering these factors in holding the seating of an alternate juror harmless). And jurors are Conclusion allowed to communicate using notes with the trial court. SeeTEX.R. CIV. P. 285 (allowing jury to communicate with Having overruled all of Walker's points of error, we affirm the court either orally or in writing). the judgment of the trial court.

Any error in replacing the original juror with an alternate or All Citations allowing the jury to send notes to the judge was harmless in this case. We cannot reverse a judgment unless the error Not Reported in S.W.3d, 2013 WL 3771302 probably caused the rendition of an improper judgment.

Footnotes 1 Specifically, Question One stated: Was Doreatha Walker's report to the Texas Education Agency (“TEA”) on May 3, 2009, in which she accused the District of improperly reporting Head Start students to the State to gain additional transportation funding, made in good faith and a cause of Dr. Michael Bergman's statements to the Board of Trustees at the May 19, 2009 Board meeting? Question Two stated: Were Doreatha Walker's reports to the Galveston County Health Department, the Texas Department of State Health, and the Environmental Protection Agency in February 2009 regarding the presence of mold in the Kids First Head Start Building made in good faith and a cause of her suspension on May 1, 2009? Both questions included this instruction about “good faith”: “Good faith” means that (1) Doreatha Walker believed that the conduct reported was a violation of law, and (2) her belief was reasonable in light of her training and experience. 2 Walker's proposed jury charge questions were: 1. Was Doreatha Walker's report to the (TEA) on May 3, 2009, in which she accused the District of improperly reporting Head Start students to the State to gain additional transportation funding, made in good faith and a cause of Dr. Michael Bergman's statements to the Board of Trustees at the May 19, 2009 Board meeting? 2. Were the reports of mold to the Galveston County Health Department, Texas Department of State Health and Environmental Protection Agency the cause of Walker's suspension on May 1, 2009? 3 In point of error 3, Walker claims the trial court abused its discretion because “it allowed Hitchcock ISD to create a new ‘Affirmative Defense’ during the Trial to ambush and prejudice Mrs. Walker.”The new affirmative defense was “when they told the Jury Plaintiff did not identify a law being violated,” and she objected. She has not identified where in the record the District made this argument or where the trial court allowed it to be presented. Instead she cited the entire thirteen- volume record. As we cannot find where in the record an allegedly improper act occurred, we overrule plaintiff's point of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013) 2013 WL 3771302

error 3 for failure to provide appropriate record citations. SeeTEX.R.APP. P. 38.1(i); Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 200–01 (Tex.1955) (explaining that the appellate courts are not required to search through voluminous records to find the parties' citations for them). 4 In point of error 29, Walker claims the trial court abused its discretion because “it allowed Hitchcock ISD to bring up things ... denied in their Motion for Limine.”She offers no argument to support this allegation and provides no citations for guidance beyond this bare assertion. As we cannot find where in the record an allegedly improper act occurred, we overrule plaintiff's point of error 29 for failure to reference authority or the record. SeeTEX.R.APP. P. 38.1(i).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 § 134.002. Findings and Declaration of Policy, TX NAT RES § 134.002

Vernon's Texas Statutes and Codes Annotated Natural Resources Code (Refs & Annos) Title 4. Mines and Mining (Refs & Annos) Chapter 134. Texas Surface Coal Mining and Reclamation Act (Refs & Annos) Subchapter A. General Provisions

V.T.C.A., Natural Resources Code § 134.002

§ 134.002. Findings and Declaration of Policy

Currentness

The legislature finds and declares that:

(1) the Congress of the United States has enacted the federal Act, which provides for the establishment of a nationwide program to regulate surface coal mining and reclamation and which vests exclusive authority in the Department of the Interior over the regulation of surface coal mining and reclamation in the United States;

(2) Section 101 of the federal Act contains the finding by Congress that because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to that Act should rest with the states;

(3) Section 503 of the federal Act provides that each state may assume and retain exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in that state by obtaining approval of a state program of regulation that demonstrates that the state is able to carry out the provisions and meet the purposes of that Act;

(4) Section 503 of the federal Act further provides that a state wishing to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in the state must have a state law that provides for the regulation of surface coal mining and reclamation operations in accordance with that Act; and

(5) this state wishes to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in the state under the federal Act.

Credits Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

V. T. C. A., Natural Resources Code § 134.002, TX NAT RES § 134.002 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 134.020. Designation of Area as Unsuitable for Surface..., TX NAT RES § 134.020

Vernon's Texas Statutes and Codes Annotated Natural Resources Code (Refs & Annos) Title 4. Mines and Mining (Refs & Annos) Chapter 134. Texas Surface Coal Mining and Reclamation Act (Refs & Annos) Subchapter B. Powers and Duties of Commission

V.T.C.A., Natural Resources Code § 134.020

§ 134.020. Designation of Area as Unsuitable for Surface Coal Mining

Currentness

(a) On petition under Section 134.017, the commission shall designate an area unsuitable for all or certain types of surface coal mining operations if the commission determines that reclamation under this chapter is not technologically and economically feasible.

(b) On petition under Section 134.017, the commission may designate a surface area unsuitable for certain types of surface coal mining operations if those operations will:

(1) be incompatible with existing state or local land use plans or programs;

(2) affect fragile or historic land in which the operations could result in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems;

(3) affect renewable resource lands, including aquifers and aquifer recharge areas, in which the operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products; or

(4) affect natural hazard land, including areas subject to frequent flooding and areas of unstable geology, in which the operations could substantially endanger life and property.

(c) Sections 134.016 through 134.019 and this section do not apply to land:

(1) for which substantial legal and financial commitments in a surface coal mining operation or proposed operation were in existence before January 4, 1977;

(2) on which surface coal mining operations were being conducted on August 3, 1977; or

(3) on which surface coal mining operations are being conducted under a permit issued under this chapter.

Credits Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 134.020. Designation of Area as Unsuitable for Surface..., TX NAT RES § 134.020

V. T. C. A., Natural Resources Code § 134.020, TX NAT RES § 134.020 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 16.312. Purpose, TX WATER § 16.312

Vernon's Texas Statutes and Codes Annotated Water Code (Refs & Annos) Title 2. Water Administration (Refs & Annos) Subtitle C. Water Development Chapter 16. Provisions Generally Applicable to Water Development (Refs & Annos) Subchapter I. Flood Insurance (Refs & Annos)

V.T.C.A., Water Code § 16.312

§ 16.312. Purpose

Currentness

The State of Texas recognizes the personal hardships and economic distress caused by flood disasters since it has become uneconomic for the private insurance industry alone to make flood insurance available to those in need of such protection on reasonable terms and conditions. Recognizing the burden of the nation's resources, congress enacted the National Flood Insurance Act of 1968, as amended (42 U.S.C. Sections 4001 through 4127), whereby flood insurance can be made available through coordinated efforts of the federal government and the private insurance industry, by pooling risks, and the positive cooperation of state and local government. The purpose of this subchapter is to evidence a positive interest in securing flood insurance coverage under this federal program and to so procure for those citizens of Texas desiring to participate and in promoting the public interest by providing appropriate protection against the perils of flood losses and in encouraging sound land use by minimizing exposure of property to flood losses.

Credits Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977.

V. T. C. A., Water Code § 16.312, TX WATER § 16.312 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 16.3145. National Flood Insurance Program Orders or..., TX WATER § 16.3145

Vernon's Texas Statutes and Codes Annotated Water Code (Refs & Annos) Title 2. Water Administration (Refs & Annos) Subtitle C. Water Development Chapter 16. Provisions Generally Applicable to Water Development (Refs & Annos) Subchapter I. Flood Insurance (Refs & Annos)

V.T.C.A., Water Code § 16.3145

§ 16.3145. National Flood Insurance Program Orders or Ordinances

Currentness

The governing body of each city and county shall adopt ordinances or orders, as appropriate, necessary for the city or county to be eligible to participate in the National Flood Insurance Program.

Credits Added by Acts 1999, 76th Leg., ch. 1360, § 1, eff. Aug. 30, 1999.

V. T. C. A., Water Code § 16.3145, TX WATER § 16.3145 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 26.011. In General, TX WATER § 26.011

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 § 26.011

§ 26.011. In General

Currentness

Except as otherwise specifically provided, the commission shall administer the provisions of this chapter and shall establish the level of quality to be maintained in, and shall control the quality of, the water in this state as provided by this chapter. Waste discharges or impending waste discharges covered by the provisions of this chapter are subject to reasonable rules or orders adopted or issued by the commission in the public interest. The commission has the powers and duties specifically prescribed by this chapter and all other powers necessary or convenient to carry out its responsibilities. This chapter does not apply to discharges of oil covered under Chapter 40, Natural Resources Code.

Credits Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.065, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 10, § 4, eff. March 28, 1991.

Notes of Decisions (8)

V. T. C. A., Water Code § 26.011, TX WATER § 26.011 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 26.023. Water Quality Standards, TX WATER § 26.023

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 (1)

V. T. C. A., Water Code § 26.023, TX WATER § 26.023 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 26.171. Inspection of Public Water, TX WATER § 26.171

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 E. Authority of Local Governments

V.T.C.A., Water Code § 26.171

§ 26.171. Inspection of Public Water

Currentness

A local government may inspect the public water in its area and determine whether or not:

(1) the quality of the water meets the state water quality standards adopted by the commission;

(2) persons discharging effluent into the public water located in the areas of which the local government has jurisdiction have obtained permits for discharge of the effluent; and

(3) persons who have permits are making discharges in compliance with the requirements of the permits.

Credits Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.103, eff. Sept. 1, 1985.

Notes of Decisions (1)

V. T. C. A., Water Code § 26.171, TX WATER § 26.171 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 26.172. Recommendations to Commission, TX WATER § 26.172

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 E. Authority of Local Governments

V.T.C.A., Water Code § 26.172

§ 26.172. Recommendations to Commission

Currentness

A local government may make written recommendations to the commission as to what in its judgment the water quality standards should be for any public water within its territorial jurisdiction.

Credits Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.103, eff. Sept. 1, 1985.

V. T. C. A., Water Code § 26.172, TX WATER § 26.172 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 26.176. Disposal System Rules, TX WATER § 26.176

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 E. Authority of Local Governments

V.T.C.A., Water Code § 26.176

§ 26.176. Disposal System Rules

Currentness

(a) Every local government which owns or operates a disposal system is empowered to and shall, except as authorized in Subsection (c) of this section, enact and enforce rules, ordinances, orders, or resolutions, referred to in this section as rules, to control and regulate the type, character, and quality of waste which may be discharged to the disposal system and, where necessary, to require pretreatment of waste to be discharged to the system, so as to protect the health and safety of personnel maintaining and operating the disposal system and to prevent unreasonable adverse effects on the disposal system.

(b) The local government in its rules may establish the charges and assessments which may be made to and collected from all persons who discharge waste to the disposal system or who have conduits or other facilities for discharging waste connected to the disposal system, referred to in this subsection as “users.” The charges and assessments shall be equitable as between all users and shall correspond as near as can be practically determined to the cost of making the waste disposal services available to all users and of treating the waste of each user or class of users. The charges and assessments may include user charges, connection fees, or any other methods of obtaining revenue from the disposal system available to the local government. In establishing the charges and assessments, the local government shall take into account:

(1) the volume, type, character, and quality of the waste of each user or class of users;

(2) the techniques of treatment required;

(3) any capital costs and debt retirement expenses of the disposal system required to be paid for from the charges and assessments;

(4) the costs of operating and maintaining the system to comply with this chapter and the permits, rules, and orders of the commission; and

(5) any other costs directly attributable to providing the waste disposal service under standard, accepted cost-accounting practices.

(c) A local government may apply to the commission for an exception from the requirements of Subsections (a) and (b) of this section or for a modification of those requirements. The application shall contain the exception or modifications desired, the reasons the exception or modifications are needed, and the grounds authorized in this subsection on which the commission

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 26.176. Disposal System Rules, TX WATER § 26.176

should grant the application. A public hearing on the application shall be held in or near the territorial area of the local government, and notice of the hearing shall be given to the local government. If after the hearing the commission in its judgment determines that the volume, type, character, and quality of the waste of the users of the system or of a particular user or class of users of the system do not warrant the enactment and enforcement of rules containing the requirements prescribed in Subsections (a) and (b) of this section or that the enactment and enforcement of the rules would be impractical or unreasonably burdensome on the local government in relation to the public benefit to be derived, then the commission in its discretion may enter an order granting an exception to those requirements or modifying those requirements in any particular in response to circumstances shown to exist.

(d) At any time and from time to time as circumstances may require, the commission may amend or revoke any order it enters pursuant to Subsection (c) of this section. Before the commission amends or revokes such an order, a public hearing shall be held in or near the territorial area of the local government in question, and notice of the hearing shall be given to the local government. If after the hearing the commission in its judgment determines that the circumstances on which it based the order have changed significantly or no longer exist, the commission may revoke the order or amend it in any particular in response to the circumstances then shown to exist.

(e) In the event of any conflict between the provisions of this section and any other laws or parts of laws, the provisions of this section shall control.

Credits Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.105, eff. Sept. 1, 1985.

Notes of Decisions (3)

V. T. C. A., Water Code § 26.176, TX WATER § 26.176 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 26.180. Nonpoint Source Water Pollution Control Programs..., TX WATER § 26.180

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 E. Authority of Local Governments

V.T.C.A., Water Code § 26.180

§ 26.180. Nonpoint Source Water Pollution Control Programs of Certain Municipalities

Currentness

(a) This section applies to a municipality to which Section 42.903, Local Government Code, applies.

(b) The municipality shall exercise the powers granted under state law to a municipality to adopt ordinances to control and abate nonpoint source water pollution or to protect threatened or endangered species.

(c) The municipality by ordinance shall adopt a nonpoint source water pollution control and abatement program for the municipality and its extraterritorial jurisdiction before the municipality adopts a resolution or ordinance creating an extraterritorial jurisdiction under Section 42.903, Local Government Code. The municipality shall submit the ordinance creating the program to the commission. Notwithstanding any other law requiring the adoption of an ordinance creating an extraterritorial jurisdiction and approval by the commission, the ordinance creating the program becomes effective and is enforceable by the municipality on the 90th day after the date the municipality submits the ordinance unless the ordinance is disapproved by the commission during the 90-day period.

(d) If the commission disapproves a program submitted under Subsection (c) of this section, the commission shall make recommendations to the municipality. The municipality shall adopt and incorporate the commission's recommendations in the program.

(e) The nonpoint source water pollution controls of the municipality that had extraterritorial jurisdiction over an area before the area was included in the extraterritorial jurisdiction of another municipality under Section 42.903, Local Government Code, are effective during the 90-day period that the program is pending before the commission or until an amended program satisfactory to the commission is adopted. The municipality, including the area in its extraterritorial jurisdiction under Section 42.903, Local Government Code, shall enforce the controls during the 90-day period.

(f) If a nonpoint source water pollution control and abatement program is adopted by a river authority that has boundaries that encompass the extraterritorial jurisdiction of the municipality, the standards under the program adopted by the municipality must meet or exceed the standards under the program adopted by the river authority.

(g) The municipality may not grant a waiver to its nonpoint source water pollution control and abatement program unless granting the waiver would demonstrably improve water quality.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 26.180. Nonpoint Source Water Pollution Control Programs..., TX WATER § 26.180

Credits Added by Acts 1991, 72nd Leg., ch. 16, § 13.01(b), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Water Code § 26.178 by Acts 1995, 74th Leg., ch. 76, § 17.01(52), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Water Code § 26.179 by Acts 1997, 75th Leg., ch. 165, § 31.01(75), eff. Sept. 1, 1997.

V. T. C. A., Water Code § 26.180, TX WATER § 26.180 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 NATIONAL FLOOD INSURANCE PROGRAM

PROGRAM DESCRIPTION August 1, 2002

Federal Emergency Management Agency Federal Insurance and Mitigation Administration NFIP Description August 1, 2002

National Flood Insurance Program The U.S. Congress established the National Flood Insurance Program (NFIP) with the passage of the National Flood Insurance Act of 1968. The NFIP is a Federal program enabling property owners in participating communities to purchase insurance as a protection against flood losses in exchange for State and community floodplain management regulations that reduce future flood damages. Participation in the NFIP is based on an agreement between communities and the Federal Government. If a community adopts and enforces a floodplain management ordinance to reduce future flood risk to new construction in floodplains, the Federal Government will make flood insurance available within the community as a financial protection against flood losses. This insurance is designed to provide an insurance alternative to disaster assistance to reduce the escalating costs of repairing damage to buildings and their contents caused by floods.

Purpose of this Document: The purpose of this document is to provide a comprehensive description of the NFIP intended for use by FEMA staff and NFIP constituents. It provides an overview and history of the Program and covers all three aspects of the Program: 1) floodplain identification and mapping; 2) floodplain management; and 3) flood insurance.

NFIP activities that are described in detail in this document include:

• How flood-prone areas are identified and mapped; • FEMA’s map modernization initiative; • The floodplain management requirements a community must adopt and enforce; • FEMA’s community assistance and monitoring activities; • How flood insurance is sold; • What structures are eligible for flood insurance coverage and the amount of coverage available; • How flood insurance policies are rated and claims are paid; • The Community Rating System; and • The Flood Mitigation Assistance program.

This document also includes a description of the Mandatory Purchase of Flood Insurance Requirement and how this requirement relates to the NFIP. Finally, it includes a description of other FEMA programs and activities that provide mitigation assistance and planning assistance in reducing the Nation’s flood losses.

A list of acronyms used in this description is provided at the end of the document. NFIP Description August 1, 2002

Federal Emergency Management Agency’s Mission............................................1

Overview of the NFIP ..............................................................................................1

Flood Hazard Identification and Risk Assessment...............................................4 The “100-year” Standard .......................................................................................................................... 5 Identifying and Mapping Flood-Prone Areas ........................................................................................... 5 Flood Mapping Process ............................................................................................................................ 7 Depiction of Levee Systems and Floodwall Systems on NFIP Maps ...................................................... 8 Changes to the Flood Maps ...................................................................................................................... 9 Mapping the Coastal Barrier Resource System or Otherwise Protected Areas ...................................... 10 Map Modernization Program.................................................................................................................. 10 Mapping Future Conditions.................................................................................................................... 12

Floodplain Management........................................................................................12 Minimum NFIP Floodplain Management Requirements ....................................................................... 13 Ordinance Adoption ............................................................................................................................... 16 Monitoring Community Compliance...................................................................................................... 17 Actions Against Communities For Failure to Enforce ........................................................................... 18 Actions Against Individual Properties For Failure to Comply ............................................................... 19 State Floodplain Management Role........................................................................................................ 20 Post-Disaster Assessments ..................................................................................................................... 20 Providing Technical Assistance.............................................................................................................. 21

Flood Insurance......................................................................................................22 Sale of Flood Insurance .......................................................................................................................... 22 Flood Insurance Policy ........................................................................................................................... 23 Eligible Structures .................................................................................................................................. 23 Coastal Barrier Resources System.......................................................................................................... 24 Waiting Period........................................................................................................................................ 25 Coverage Amounts ................................................................................................................................. 25 Other Coverages ..................................................................................................................................... 26 Ratemaking............................................................................................................................................. 26 Claims..................................................................................................................................................... 27 Marketing ............................................................................................................................................... 29

Mandatory Flood Insurance Purchase Requirement.........................................29 NFIP Description August 1, 2002

Other NFIP Activities ............................................................................................31 Community Rating System..................................................................................................................... 31 Flood Mitigation Assistance Program .................................................................................................... 33

Other FEMA Programs.........................................................................................34 Hazard Mitigation Grant Program .......................................................................................................... 34 Disaster Mitigation Act of 2000 ............................................................................................................. 35 Planning Initiatives ................................................................................................................................. 36

A Key To The Acronyms Used In This Document .............................................37 NFIP Description August 1, 2002

Federal Emergency Management Agency’s Mission The Federal Emergency Management Agency (FEMA) is an independent Federal agency reporting to the President. Founded in 1979, FEMA’s mission is to: Lead America to prepare for, prevent, respond to, and recover from disaster. FEMA is responsible for coordinating the Federal response to floods, earthquakes, hurricanes, and other natural or man-made disasters and providing disaster assistance to States, communities and individuals. Disasters are declared by the President at the request of the Governor of the impacted State if the impacts of the disaster exceed the ability of the State and the affected communities to respond. For declared disasters, FEMA activates the Federal Response Plan with 27 signatory agencies. The Federal Response Plan provides a framework for the coordination of assistance to States, communities, and individuals by Federal agencies.

The Federal Insurance and Mitigation Administration (FIMA) within FEMA is responsible for administering the National Flood Insurance Program (NFIP) and administering programs that provide assistance for mitigating future damages from natural hazards.

FEMA also provides training and technical assistance to governmental and non-governmental entities in preparing for and responding to disasters and for protecting against future disasters through mitigation. In addition to a headquarters office in Washington, D.C., FEMA has 10 regional offices.

Overview of the NFIP Up until 1968, Federal actions related to flooding were primarily responses to significant events that resulted in using structural measures to control flooding. Major riverine flood disasters of the 1920’s and 1930’s led to considerable Federal involvement in protecting life and property from flooding through the use of structural flood-control projects, such as dams and levees, with the passage of the Flood Control Act of 1936. Generally, the only available financial recourse to assist flood victims was in the form of disaster assistance. Despite the billions of dollars in Federal investments in structural flood-control projects, the losses to life and property and the amount of assistance to disaster victims from floods continued to increase.

As early as the 1950’s, when the feasibility of providing flood insurance was first proposed, it became clear that private insurance companies could not profitably provide such coverage at an affordable price, primarily because of the catastrophic nature of flooding and the inability to develop an actuarial rate structure which could adequately reflect the risk to which flood-prone properties are exposed. Congress proposed an experimental program designed to demonstrate the feasibility of the private sector providing flood insurance by enacting the Federal Insurance Act of 1956, but this Act was never implemented.

In recognition of increasing flood losses and disaster relief costs, major steps were taken in the 1960’s to redefine Federal policy and approaches to flood control. In 1965, Congress passed the Southeast Hurricane Disaster Relief Act. The Act was as a result of the extensive damage

1 NFIP Description August 1, 2002

caused by Hurricane Betsy in the Gulf States. The Act provided financial relief for the flooding victims and authorized a feasibility study of a national flood insurance program. The resulting report was entitled, “Insurance and Other Programs for Financial Assistance to Flood Victims”. Shortly thereafter, the Bureau of the Budget Task Force on Federal Flood Control in 1966 advocated a broader perspective on flood control within the context of floodplain development in House Document 465, “A Unified National Program for Managing Flood Losses”. House Document 465 included five major goals: • Improve basic knowledge about flood hazards; • Coordinate and plan new developments in the floodplain; • Provide technical services; • Move toward a practical national program of flood insurance; and • Adjust Federal flood control policy to sound criteria and changing needs. House Document 465 and the prior feasibility study provided the basis for the National Flood Insurance Act of 1968. The primary purposes of the 1968 Act creating the NFIP are to: • Better indemnify individuals for flood losses through insurance; • Reduce future flood damages through State and community floodplain management regulations; and • Reduce Federal expenditures for disaster assistance and flood control. Section 1315 of the 1968 Act is a key provision that prohibits FEMA from providing flood insurance unless the community adopts and enforces floodplain management regulations that meet or exceed the floodplain management criteria established in accordance with Section 1361(c) of the Act. These floodplain management criteria are contained in 44 Code of Federal Regulations (CFR) Part 60, Criteria for Land Management and Use. The emphasis of the NFIP floodplain management requirements is directed toward reducing threats to lives and the potential for damages to property in flood-prone areas. Over 19,700 communities presently participate in the NFIP. These include nearly all communities with significant flood hazards.

In addition to providing flood insurance and reducing flood damages through floodplain management regulations, the NFIP identifies and maps the Nation’s floodplains. Mapping flood hazards creates broad-based awareness of the flood hazards and provides the data needed for floodplain management programs and to actuarially rate new construction for flood insurance.

When the NFIP was created, the U.S. Congress recognized that insurance for “existing buildings” constructed before a community joined the Program would be prohibitively expensive if the premiums were not subsidized by the Federal Government. Congress also recognized that most of these flood-prone buildings were built by individuals who did not have sufficient knowledge of the flood hazard to make informed decisions. Under the NFIP, “existing buildings” are generally referred to as Pre-FIRM (Flood Insurance Rate Map) buildings. These buildings were built before the flood risk was known and identified on the community’s FIRM. Currently about 26 percent of the 4.3 million NFIP policies in force are Pre-FIRM subsidized compared to 70 percent of the policies being subsidized in 1978.

2 NFIP Description August 1, 2002

In exchange for the availability of subsidized insurance for existing buildings, communities are required to protect new construction and substantially improved structures through adoption and enforcement of community floodplain management ordinances. The 1968 Act requires that full actuarial rates reflecting the complete flood risk be charged on all buildings constructed or substantially improved on or after the effective date of the initial FIRM for the community or after December 31, 1974, whichever is later. These buildings are generally referred to as “Post-FIRM” buildings.

Early in the Program’s history, the Federal Government found that providing subsidized flood insurance for existing buildings was not a sufficient incentive for communities to voluntarily join the NFIP nor for individuals to purchase flood insurance. Tropical Storm Agnes in 1972, which caused extensive riverine flooding along the east coast, proved that few property owners in identified floodplains were insured. This storm cost the Nation more in disaster assistance than any previous disaster. For the Nation as a whole, only a few thousand communities participated in the NFIP and only 95,000 policies were in force.

As a result, Congress passed the Flood Disaster Protection Act of 1973. The 1973 Act prohibits Federal agencies from providing financial assistance for acquisition or construction of buildings and certain disaster assistance in the floodplains in any community that did not participate in the NFIP by July 1,1975, or within 1 year of being identified as flood-prone.

Additionally, the 1973 Act required that Federal agencies and federally insured or regulated lenders had to require flood insurance on all grants and loans for acquisition or construction of buildings in designated Special Flood Hazard Areas (SFHAs) in communities that participate in the NFIP. This requirement is referred to as the Mandatory Flood Insurance Purchase Requirement. The SFHA is that land within the floodplain of a community subject to a 1 percent or greater chance of flooding in any given year, commonly referred to as the 100-year flood.

The Mandatory Flood Insurance Purchase Requirement, in particular, resulted in a dramatic increase in the number of communities that joined the NFIP in subsequent years. In 1973, just over 2,200 communities participated in the NFIP. Within 4 years, approximately 15,000 communities had joined the Program. It also resulted in a dramatic increase in the number of flood insurance policies in force. In 1977, approximately 1.2 million flood insurance policies were in force, an increase of almost 900,000 over the number policies in force in December of 1973.

The authors of the original study of the NFIP thought that the passage of time, natural forces, and more stringent floodplain management requirements and building codes would gradually eliminate the number of Pre-FIRM structures. Nevertheless, modern construction techniques have extended the useful life of these Pre-FIRM buildings beyond what was originally expected. However, their numbers overall continue to decrease. The decrease in the number of Pre-FIRM buildings has been attributed to a number of factors such as, severe floods in which buildings were destroyed or substantially damaged, redevelopment, natural attrition, acquisition of flood damaged structures, as well as flood control projects.

3 NFIP Description August 1, 2002

In 1994, Congress amended the 1968 Act and the 1973 Act with the National Flood Insurance Reform Act (NFIRA). The 1994 Act included measures, among others, to:

• Increase compliance by mortgage lenders with the mandatory purchase requirement and improve coverage; • Increase the amount of flood insurance coverage that can be purchased; • Provide flood insurance coverage for the cost of complying with floodplain management regulations by individual property owners (Increased Cost of Compliance coverage); • Establish a Flood Mitigation Assistance grant program to assist States and communities to develop mitigation plans and implement measures to reduce future flood damages to structures; • Codify the NFIP’s Community Rating System; and • Require FEMA to assess its flood hazard map inventory at least once every 5 years.

Funding for the NFIP is through the National Flood Insurance Fund, which was established in the Treasury by the 1968 Act. Premiums collected are deposited into the fund, and losses, and operating and administrative costs are paid out of the fund. In addition, the Program has the authority to borrow up to $1.5 billion from the Treasury, which must be repaid along with interest. Until 1986, Federal salaries and program expenses, as well as the costs associated with flood hazard mapping and floodplain management were paid by an annual appropriation from Congress. From 1987 to 1990, Congress required the Program to pay these expenses out of premium dollars. When expressed in current dollars, $485 million of policyholder premiums were transferred to pay salary and other expenses of the Program. Beginning in 1991, a Federal policy fee of $25 dollars, which was increased to $30 in 1995, is applied to most policies in order to generate the funds for salaries, expenses, and mitigation costs.

The three basic components of the Program – identifying and mapping flood-prone communities, the requirement that communities adopt and enforce floodplain management regulations, and the provision of flood insurance – are described in detail below. Other aspects and components of the Program, including the Mandatory Purchase Requirement, the Community Rating System and the Flood Mitigation Assistance program, are also described.

Flood Hazard Identification and Risk Assessment The Director of FEMA is required by statute to identify and map the Nation’s flood-prone areas and to establish flood-risk zones in such areas. Flood hazard maps have been issued for over 19,200 communities at a cost of over $1.5 billion (actual dollars) [$2.8 billion in 2001 dollars]. To date, approximately 100,000 flood map panels have been produced depicting approximately 150,000 square miles of floodplain areas.

The FEMA flood hazard maps are used an estimated 15 million times annually for State and community floodplain management regulations, for calculating flood insurance premiums, and for determining whether property owners are required by law to obtain flood insurance as a condition of obtaining mortgage loans or other Federal or federally related financial assistance. FEMA’s flood hazard maps are also used by States and communities for emergency management

4 NFIP Description August 1, 2002

and for land use and water resources planning and by Federal agencies implementing Executive Order 11988, Floodplain Management for Federal actions proposed in or affecting floodplains.

The “100-year” Standard

The NFIP would not be able to offer insurance at affordable rates without the existence of risk management (floodplain management) to reduce flood losses. In order to assess and manage the flood risk, a national standard was needed. The U.S. Department of Housing and Urban Development, which initially administered the NFIP before FEMA was created, began its administration of the NFIP by calling on a group of experts to advise the agency as to the best standard to be used as the basis for risk assessment, insurance rating, and floodplain management for the Program. After extensive study and coordination with Federal and State agencies, this group recommended the 1-percent-annual-chance flood (also referred to as the 100-year or “Base Flood”) be used as the standard for the NFIP.

The 1-percent-annual-chance flood was chosen on the basis that it provides a higher level of protection while not imposing overly stringent requirements or the burden of excessive costs on property owners. The 1-percent-annual-chance flood (or 100-year flood) represents a magnitude and frequency that has a statistical probability of being equaled or exceeded in any given year, or, stated alternatively, the 100-year flood has a 26 percent (or 1 in 4) chance of occurring over the life of a 30-year mortgage.

In 1973, the Senate Committee on Banking, Housing and Urban Affairs, which had oversight responsibility for the NFIP, heard arguments on both sides on the appropriateness of the 100- year base flood standard. The Committee concluded that the 1-percent-annual-chance flood was reasonable and consistent with national objectives in reducing flood losses. In 1981, the Office of Management and Budget (OMB) directed FEMA to review the use of the 1-percent-annual- chance flood as part of the President’s 1981 Task Force on Regulatory Relief. In its report to OMB, FEMA reaffirmed the overwhelming support for the Base Flood standard in responses from the public and private sector.

The 1-percent-annual-chance flood is a regulatory standard used by Federal agencies, and most States, to administer floodplain management programs. The 1-percent-annual-chance flood standard has been used since the inception of the NFIP and is used for floodplain management purposes in all of the 19,200 participating communities that have been issued flood hazard maps.

Identifying and Mapping Flood-Prone Areas

To meet the objective that studies be conducted to accurately assess the flood risk within each flood-prone community, the 1968 Act called for: 1) the identification and publication of information within five years for all floodplain areas that have special flood hazards; and 2) the establishment of flood-risk zones in all such areas to be completed over a 15-year period following passage of the Act.

When the NFIP was initially established, communities had to have been mapped and have flood- risk zones established before they could participate in the Program. Within the first year of

5 NFIP Description August 1, 2002

NFIP’s operation, it became evident that the time required to complete the detailed flood insurance studies would markedly delay implementation of the Program in many flood-prone communities. As a result, an interim means for more rapid community participation in the NFIP had to be provided. The Housing and Urban Development Act of 1969 expanded participation by authorizing an Emergency Program under which insurance coverage could be provided at non-actuarial, federally subsidized rates in limited amounts during the period prior to completion of a community’s Flood Insurance Study (FIS).

Until an FIS could be conducted, Flood Hazard Boundary Maps, which delineated the boundaries of the community’s SFHAs, were prepared using approximate methods. These methods identified on an approximate basis a 1-percent-annual-chance floodplain, but did not include the determination of Base Flood Elevations (BFEs) (100-year flood elevations), flood depths, or floodways. The Flood Hazard Boundary Map was intended to assist communities in managing floodplain development, and to assist insurance agents and property owners in identifying those areas where the purchase of flood insurance was advisable.

FISs that use detailed hydrologic and hydraulic analyses to develop BFEs and designate floodways and risk zones for developed areas of the floodplain were subsequently produced for most NFIP communities. Once more detailed risk data were provided to communities, the community could enter the Regular Program whereby the community is required to adopt more comprehensive floodplain management requirements and owners of structures could purchase higher amounts of insurance.

In producing and updating FISs, FEMA typically uses a combination of two study approaches (approximate and detailed) in identifying a community’s flood hazards. Detailed study methods typically employ the use of engineering models and, at a minimum, result in the determination of BFEs or flood depths and floodways that will be displayed on the FIRM. In general, the decision whether to use the approximate method or detailed method is based on existing and anticipated development in and near the floodplain. Flood hazard information for flooding sources that affect developed or developing areas are based on detailed studies whenever possible; approximate study methods, which are less rigorous than detailed methods and do not determine BFEs or floodways, may be used for undeveloped or sparsely developed areas.

An FIS usually generates the following flood hazard information:

• BFEs are presented as either water-surface elevations or average depths of flow above the ground surface. These elevations and depths are usually referenced to either the National Geodetic Vertical Datum of 1929 (NGVD29) or the North American Vertical Datum of 1988 (NAVD88). • Water-surface elevations for the 10-year (10-percent-annual-chance), 50-year (2-percent- annual-chance), 100-year (1-percent-annual-chance), and 500-year (0.2-percent-annual- chance) floods. • Boundaries of the regulatory 100-year floodway. The regulatory floodway is defined as the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the entire Base Flood (100-year flood) discharge can be conveyed with no greater than a 1.0-foot increase in the BFE.

6 NFIP Description August 1, 2002

• The boundaries of the 100- and 500-year floodplains. The 100-year floodplain is referred to as the Special Flood Hazard Area (SFHA).

The results of the FIS are presented on a map, referred to as a Flood Insurance Rate Map (FIRM), and presented in the FIS report in a narrative and graphically as flood profiles attached to the narrative. FEMA determines the 1-percent-annual-chance flood, shown on the FIRMs as A Zones or V Zones, from information that obtained through consultation with the community, and from floodplain topographic surveys, detailed hydrologic and hydraulic analyses, and historic records. FEMA uses commonly accepted computer models and engineering methods that estimate hydrologic and hydraulic conditions to determine the 1-percent-annual-chance flood, to determine BFEs, and to designate flood-risk zones.

FEMA defines technical requirements, product specifications for Flood Hazard Maps and related NFIP products, and associated coordination and documentation activities in Guidelines and Specifications for Flood Hazard Mapping Partners, dated February 2002. The Guidelines, which are used to prepare FISs and restudies, provide information for the evaluation of riverine and alluvial fan flood hazards, coastal flooding and flood-related erosion, and flood hazards along the Great Lakes. The Guidelines also include procedures for conducting hydrologic and hydraulic analyses of a flooding source or sources in order to establish BFEs. Also, included in the Guidelines is information on process and products associated with the Cooperative Technical Partners initiative, digital Flood Insurance Rate Map (DFIRM) specifications, and the option of including a flood hazard zone reflecting future conditions on the FIRM when requested by the community.

Along rivers, streams, and lakes within the United States, FEMA computes flood elevations using computer models, statistical techniques, or both. These elevations are a function of the amount of water expected to enter a particular system by means of precipitation and runoff. The SFHAs in riverine areas are primarily identified as “A Zones” on the FIRM.

Along the coast, FEMA determines SFHAs by an analysis of storm surge, wind direction and speed, wave heights, and other factors. FEMA designates these areas along the coast as both V Zones and A Zones on the FIRM. V Zones are the more hazardous coastal flood zones because they are subject to high velocity wave action. FEMA applies the V-Zone designation to those areas along the coast where water depth and other conditions would support at least a 3-foot wave height. FEMA also considers other factors in identifying V Zones, such as wave run-up. FEMA usually designates A Zones in coastal areas landward of the V Zone. Coastal flood hazards areas mapped as A Zones can be subject to storm surge and damaging waves; however, the waves are less than 3 feet in height.

Flood Mapping Process

Over 10,000 communities have been provided detailed FISs and have been issued FIRMs that include BFEs for Zones AE, A1-30, AH, AO, AR/AE, AR/A1-30, AR/AO, AR/AH, VE, and V1-30. Most of these NFIP communities will have FIRMs that include a combination of SFHAs that have been studied in detail with BFEs and floodway data and SFHAs that have been studied

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using approximate methods which have been designated Zone A without BFEs or floodway designations.

A draft FIS can be prepared by a study contractor to FEMA under the NFIP Regulations at 44 CFR Part 66 or by appellants under 44 CFR Part 65 for the purpose of establishing or revising BFE and floodway data. FEMA reviews and modifies, as appropriate, the draft FIS to ensure it complies with established NFIP criteria. Once FEMA has received and approved the draft FIS, FEMA releases the information to the public as a Preliminary FIS and FIRM for review and comment during a statutory 90-day appeal period before proposed elevations become effective.

During the appeal period, any owner or lessee of real property within the community where the proposed elevation determination has been made may file a written appeal. The appeal must be based on a demonstration that the elevations proposed by FEMA are scientifically and/or technically incorrect. Until such time as the 90-day appeal period is completed and the community is provided with a notice of final flood elevation determination, the BFE and floodway data in the FIS are considered preliminary and subject to change. During the preparation and review of the FIS and the appeals, FEMA coordinates closely with State and local officials and presents its findings at public meetings.

Depiction of Levee Systems and Floodwall Systems on NFIP Maps

FEMA does not design, construct, fund, or approve levee systems or floodwall systems. However, FEMA has developed stringent criteria that must be met before any system can be depicted as providing protection from the 1-percent-annual-chance flood on a FIRM. Once the criteria in the NFIP regulations have been met, FEMA will remove the property behind the levee or floodwall from the 1-percent-annual-chance floodplain. FEMA’s review of a levee or floodwall system is for the sole purpose of establishing appropriate risk-zone determinations for NFIP maps and does not constitute a determination or warranty by FEMA as to how a structure or system will perform in a flood event. Because of the potentially devastating effects to life and property should a levee or floodwall fail or be overtopped, FEMA takes special care in considering the impacts of such structures on flood hazards.

FEMA recognizes only a levee system or floodwall system that meets, and continues to meet, minimum design standards that provide protection from the 1-percent-annual-chance flood. Specifically, the criteria established in 44 CFR §65.10 must be satisfied before a levee may be credited and mapped as providing protection from the 1-percent-annual-chance flood event. The criteria include:

• Design criteria, which address minimum freeboard above flood height, closure devices for any openings, embankment protection, embankment and foundation stability, settlement, and interior drainage. All data submitted to demonstrate compliance with these structural requirements must be certified by a registered professional engineer. In lieu of submitting these data, a Federal agency with responsibility for levee design may certify that the levee and/or levee system provides adequate protection against the 1-percent-annual-chance flood.

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• Operations plan and criteria, which address operation of closures and interior drainage systems during a flood event. Operations for a levee system must be under the jurisdiction of a Federal or State agency, an agency created by Federal or State law, or an agency established by a community participating in the NFIP.

• Maintenance plans and criteria require an officially adopted maintenance plan. At a minimum, the plan must specify the maintenance activities to be performed, the frequency of their performance, and the person responsible for their performance. All maintenance activities must be performed under the jurisdiction of a Federal or State agency, an agency created by a Federal or State law, or an agency of a community participating in the NFIP.

Changes to the Flood Maps

The flood risk information presented on the FIRM and in the FIS report forms the technical basis for the administration of the NFIP. FEMA exercises great care to ensure that the analytical methods employed in the FISs are scientifically and technically correct, that the engineering standards followed meet professional standards, and, ultimately, that the results of the FIS are accurate. Although the NFIP maps and FIS reports are prepared according to rigorous technical standards, FEMA recognizes that changes to the maps and reports may be necessary. Some reasons for the changes are due to improvements in the techniques used in assessing flood risks, changes in physical conditions in the floodplains or watersheds, and the availability of new scientific or technical data.

In addition, the limitations imposed by the scales at which the maps are prepared may result in individual properties being inadvertently included in SFHAs. FEMA has developed a process, referred to as a Letter of Map Amendment (LOMA), to correct these inadvertent inclusions. A LOMA results from an administrative procedure that involves the review of technical data submitted by the owner or lessee of property who believes the property has incorrectly been included in a designated SFHA. A LOMA amends the currently effective FEMA map and establishes that a specific property is not located in an SFHA, thereby removing the Mandatory Flood Insurance Purchase Requirement.

FEMA has similarly established administrative procedures for changing effective maps based on new or revised scientific or technical data that reflect other changes to the floodplain including projects such as fill and flood control measures. The map actions are referred to as Letter of Map Revision based on Fill (LOMR-F) and Letter of Map Revision (LOMR) respectively.

The NFIP regulations allow FEMA to revise and amend maps and FIS reports, as warranted, or after it receives requests from community officials and individual property owners. To help FEMA ensure that the maps and reports present information that accurately reflects existing flood risks, the NFIP regulations require that each NFIP community inform FEMA of any physical changes that affect BFEs in the community and, within 6 months of the date that such data are available, submit those data that show the effects of the changes.

In making revisions and amendments, FEMA must adhere to the same engineering standards applied in the preparation of the original NFIP maps and FIS reports. Therefore, when

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requesting changes to NFIP maps and reports, community officials and property owners are required to submit adequate supporting data. Those data enable FEMA to review and evaluate the requests and to carry out its responsibility of ensuring that the flood-risk information presented is scientifically and technically correct.

Because LOMAs, LOMR-Fs, and LOMRs officially amend or revise the flood maps, they must reflect existing conditions, such as an “as-built” project. Communities, developers, and property owners also frequently submit requests for proposed projects in floodplain areas to FEMA for review and comment. Such requests typically include data and analyses of the pre- and post- project conditions so that FEMA can ascertain the impact on flood hazards of the proposed project. FEMA reviews such requests using the same data and engineering standards that are used for “as-built” requests. FEMA’s response is provided in the form of a “conditional” LOMA, LOMR-F, or LOMR, which state whether the proposed project, if built as proposed, would justify a map revision. A conditional LOMA, LOMR-F, or LOMR does not constitute a building permit; the authority to approve projects and issue building permits lies with the local community and, in some instances, State agencies.

Mapping the Coastal Barrier Resource System or Otherwise Protected Areas

Congress passed the Coastal Barrier Resources Act in 1982 and the Coastal Barrier Improvement Act in 1990, defining and establishing a system of protected coastal areas (including the Great Lakes) and Otherwise Protected Areas (OPAs) known as the Coastal Barrier Resources System (CBRS). The Acts provide protection to CBRS areas by prohibiting most expenditures of Federal funds in CBRS areas, including the sale of flood insurance for buildings constructed or substantially improved after the effective date of the CBRS area. These prohibitions refer to "any form of loan, grant, guarantee, insurance, payment, rebate, subsidy or any other form of direct or indirect Federal assistance," with specific and limited exceptions.

Congress designated the initial CBRS areas in 1982 and is the only entity that may authorize a revision to CBRS boundaries. Revisions to CBRSs are typically authorized by Congress based on State and local requests as well as recommendations made by the U.S. Fish and Wildlife Service. Because of the prohibition on the sale of flood insurance for buildings constructed or substantially improved after the CBRS effective date, it is critical to depict these areas on FIRMs. Thus, FEMA, in cooperation with the U.S. Fish and Wildlife Service, transfers the boundaries from Congressionally-adopted source maps, titled “Coastal Barrier Resource System,” to FIRMs so that insurance agents will not inadvertently sell flood insurance policies for buildings not eligible for the purchase of flood insurance.

Map Modernization Program

Nationwide, approximately 75 percent of the FEMA flood maps are more than 10 years old. Because flood hazards are dynamic and usually increase over time as development occurs, old maps tend to understate actual, existing flood hazards. Additionally, most of the maps were produced using now antiquated manual cartographic techniques. The primary reason for the existing backlog of outdated maps has been inadequate program funding over the past 20 years.

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As a result, in 1997, FEMA designed a plan to modernize the FEMA flood-mapping program. With implementation of the modernization plan, the flood hazard information provided to communities would be more accurate and extensive, resulting in safer communities. The plan proposes a 7-year upgrade to the flood map inventory and an enhancement of products, services, and process that entails:

• Converting Level-1 Flood Map Upgrades that entail converting the maps to a digital format for approximately 11,140 communities (55,700 map panels)—this includes resolving community-identified map maintenance needs for 16,500 map panels; upgrading existing digitally produced 20,700 map panels to the new digital FIRM specifications; and when feasible, cost-effectively enhancing the flood theme (e.g., redelineation of floodplain boundaries on updated topography or limited detailed studies to update approximate flood zones). • Conducting Level-2 Flood Map Upgrades that entail all of the features of Level 1 Flood Map Upgrades plus incorporating updated detailed flood data through studies and restudies for approximately 4,700 communities with inadequate floodplain mapping (23,540 map panels); • Flood map creations for approximately 2,700 flood-prone communities without flood maps (13,700 map panels); • Integrating communities, States, and regional agencies into the mapping process through the Cooperating Technical Partners (CTP) initiative; • Converting the maps to metric, as required by Executive Order 12770, and to the North American Vertical Datum of 1988; and • Improving customer service to make the maps easier to obtain and use, including electronic and digital printing and distribution.

Over the proposed 7-year modernization period, the entire flood map inventory would be converted to a digital format. Additionally, approximately 13,700 new digital map panels would be created for flood-prone communities that do not currently have flood maps.

As a cornerstone of the plan, FEMA continues to fully integrate communities, States, and regional agencies in the flood mapping process through the Cooperating Technical Partners (CTP) program. To date, more than 115 partners have joined the CTP program, which includes two large remapping efforts for the States of New York and North Carolina. The program initiated for the State of North Carolina is the first statewide flood mapping initiative and includes 16 other Federal agencies. The CTP initiative allows partnering entities to perform all or portions of data collection and mapping tasks. Cooperating Technical Partners can use the Guidelines and Specifications for Flood Hazard Mapping Partners in performing supporting technical analyses and preparation of flood hazard maps.

To date, funding to implement the map modernization plan has not been made available.

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Mapping Future Conditions

Historically, flood hazard information presented on NFIP flood maps has been based on the existing conditions of the floodplain and watershed. The primary reason is that future land-use development, such as urban growth, is uncertain and difficult to predict and has not, therefore, been considered in FISs.

In recent years, a number of communities that are experiencing urban growth have expressed interest in using hydrology based on future conditions to regulate floodplain development. FEMA conducted an extensive evaluation to determine whether future conditions flood hazard information could and should be placed on FIRMs and in the accompanying FIS. On November 27, 2001, FEMA issued a final rule that allows for floodplains that reflect future conditions hydrology to be shown on the FIRM at the request of the community.

The future conditions flood hazard information will be provided for informational purposes only and it is up to the community to decide whether to use the information to regulate floodplain development. When future conditions floodplains are included on the FIRM, both the existing conditions floodplain and the future conditions floodplain will be shown. The existing conditions data will continue to be used to establish flood insurance rates and to determine if flood insurance is required. The new procedure will allow FEMA to maintain national standards while at the same time providing additional information for use by the community.

Floodplain Management Section 1315 of the 1968 Act prohibits FEMA from providing flood insurance to property owners unless the community adopts and enforces floodplain management criteria established under the authority of Section 1361(c) of the Act. These criteria are established in the NFIP regulations at 44 CFR §60.3. The community must adopt a floodplain management ordinance that meets or exceeds the minimum NFIP criteria. Under the NFIP, “community” is defined as:

“any State, or area or political subdivision thereof, or any Indian tribe or authorized tribal organization, or Alaska Native village or authorized native organization, which has authority to adopt and enforce floodplain management regulations for the areas within its jurisdiction.”

The Program has served as an important impetus for the establishment of floodplain management programs nationwide in the approximately 19,700 participating communities and most States and territories. Community participation in the NFIP is voluntary. Prior to the creation of the NFIP, floodplain management as a practice was not well established – only a few States and several hundred communities actually regulated floodplain development. For many communities, the NFIP was the community’s initial exposure to land use planning and community regulations. The power to regulate development in the floodplain, including requiring and approving permits, inspecting property, and citing violations, is granted to communities under a State’s police powers. FEMA has no direct involvement in the administration of local floodplain management ordinances. Since the Federal Government does not have land use authority, the NFIP is based

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on the Federal government’s power to spend under the Constitution rather than any Federal authority to regulate land use.

Minimum NFIP Floodplain Management Requirements

Under the NFIP, the minimum floodplain management requirements that a community must adopt depends on the type of flood risk data (detailed FIS and FIRMs with BFEs or approximate A Zones and V Zones without BFEs) that the community has been provided by FEMA. Under the NFIP regulations, participating NFIP communities are required to regulate all development in SFHAs. “Development” is defined as:

“any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.”

Before a property owner can undertake any development in the SFHA, a permit must be obtained from the community. The community is responsible for reviewing the proposed development to ensure that it complies with the community’s floodplain management ordinance. Communities are also required to review proposed development in SFHAs to ensure that all necessary permits have been received from those governmental agencies from which approval is required by Federal or State law, such as 404 wetland permits from the Army Corps of Engineers or permits under the Endangered Species Act.

Under the NFIP, communities must review subdivision proposals and other proposed new development, including manufactured home parks or subdivisions to ensure that these development proposals are reasonably safe from flooding and that utilities and facilities servicing these subdivisions or other development are constructed to minimize or eliminate flood damage.

In general, the NFIP minimum floodplain management regulations require that new construction or substantially improved or substantially damaged existing buildings in A Zones must have their lowest floor (including basement) elevated to or above the Base Flood Elevation (BFE). Non- residential structures in A Zones can be either elevated or dry-floodproofed. In V Zones, the building must be elevated on piles and columns and the bottom of the lowest horizontal structural member of the lowest floor of all new construction or substantially improved existing buildings must be elevated to or above the BFE. The minimum floodplain management requirements are further described below:

For all new and substantially improved buildings in A Zones:

• All new construction and substantial improvements of residential buildings must have the lowest floor (including basement) elevated to or above the BFE.

• All new construction and substantial improvements of non-residential buildings must either have the lowest floor (including basement) elevated to or above the BFE or dry-floodproofed to the BFE. Dry floodproofing means that the building must be designed and constructed to be watertight, substantially impermeable to floodwaters.

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• Buildings can be elevated to or above the BFE using fill, or they can be elevated on extended foundation walls or other enclosure walls, on piles, or on columns. • Because extended foundation or other enclosure walls will be exposed to flood forces, they must be designed and constructed to withstand hydrostatic pressure otherwise the walls can fail and the building can be damaged. The NFIP regulations require that foundation and enclosure walls that are subject to the 100-year flood be constructed with flood-resistant materials and contain openings that will permit the automatic entry and exit of floodwaters. These openings allow floodwaters to reach equal levels on both sides of the walls and thereby lessen the potential for damage. Any enclosed area below the BFE can only be used for the parking of vehicles, building access, or storage.

In addition, to the above requirements, communities are required to select and adopt a regulatory floodway in riverine A Zones. The area chosen for the regulatory floodway must be designed to carry the waters of the 1-percent-annual-chance flood without increasing the water surface elevation of that flood more than one foot at any point. Once the floodway is designated, the community must prohibit development within that floodway which would cause any increase in flood heights. The floodway generally includes the river channel and adjacent floodplain areas that often contain forests and wetlands, an area estimated at 5.8 million acres (or over 9,000 square miles) on the FIRMs. This requirement has the effect of limiting development in the most hazardous and environmentally sensitive part of the floodplain.

For all new and substantially improved buildings in V Zones:

• All new construction and substantial improvements of buildings must be elevated on piles and columns so that the bottom of the lowest horizontal structural member of the lowest floor is elevated to or above the BFE. No fill can be used for structural support.

• All new construction and substantial improvements of buildings must be properly anchored to resist flotation, collapse, and lateral movement.

• In V Zones, the velocity water and wave action associated with coastal flooding can exert strong hydrodynamic forces on any obstruction to the flow of water. Standard foundations such as solid masonry walls or wood-frame walls will obstruct flow and be at risk to damage from high-velocity flood forces. In addition, solid foundation walls can direct coastal floodwaters into the elevated portion of the building or into adjacent buildings. The result can be structural failure of the building. For these reasons, the area below the lowest floor of the elevated building in V Zones must either be free of obstruction, or any enclosure must be constructed with open wood lattice-panels or insect screening or, be constructed with non- supporting/non-load bearing breakaway walls which meet applicable NFIP criteria. Any enclosed area below the BFE can only be used for the parking of vehicles, building access, or storage.

• In order to further protect structures from damaging wave impacts, structures must be located landward of the reach of mean high tide. Furthermore, man-made alteration of sand dunes and mangrove stands, which would increase potential flood damage, are prohibited within V Zones.

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In responding to the public’s desire to have an enclosed area below an elevated building, but recognizing the potential risks to lives and property, the NFIP floodplain management regulations permit certain limited uses of enclosures below the lowest floor in A Zones or V Zones. Under the NFIP, the enclosed area below an elevated building in an A Zone or V Zone can only be used for the parking of vehicles, building access, or storage. The allowance of these uses below the BFE is permitted because the amount of damage caused by flooding to these areas can easily be kept to a minimum by following the performance standards for the design and construction of enclosures in A Zones and V Zones described above and by using flood-resistant building materials. To further minimize flood damages, mechanical, electrical, plumbing equipment, and other service facilities must be designed and/or located above the BFE so as to prevent damage during conditions of flooding.

The Program has led to a large reduction in potential average annual flood damages for new construction (Post-FIRM structures). The NFIP’s loss experience indicates that $1 billion in flood damages are avoided each year as a result of the NFIP floodplain management regulations for new construction. Structures built to NFIP criteria experience 80 percent less damage through reduced frequency and severity of losses.

On the other hand, there is still significant flood damage potential for existing flood-prone buildings (Pre-FIRM structures). According to estimates developed in a 1997 study, there are 6.6 million structures located in SFHAs identified on the FIRMs. These 6.6 million structures include 6.2 million residential structures (representing about 8 million housing units) and 0.4 million non- residential structures. Of the 6.6 million structures, 4.3 million Pre-FIRM structures were built prior to the issuance of a community’s FIRM and the adoption of floodplain management regulations. The problem is not with the total universe of Pre-FIRM buildings. The 4.3 million Pre-FIRM structures have varying degrees of flood risk with just over half of these structures estimated to have their lowest floor below the BFE. Of those Pre-FIRM structures that have their lowest floor below the BFE, a smaller group of Pre-FIRM structures have their lowest floor well below the BFE and are subject to the severest risk.

The NFIP substantial improvement requirement and substantial damage requirement provides a mechanism to ensure that a significant increase in investment in existing Pre-FIRM buildings will receive needed protection from the flood risk. If a community determines that the cost of improvements to a home or business equals or exceeds 50% of the market value of the building, the building is considered a “substantial improvement”. If a community determines that the cost of restoring a home or business equals or exceeds 50 of the market value of the building before the damage from any origin occurred, the building is considered "substantially damaged". A substantially improved building or substantially damaged building must meet the minimum requirements of the NFIP. It is the community’s responsibility to make substantial improvement or substantial damage determinations

The substantial damage requirement of the NFIP has been difficult for some communities to enforce. One of the primary reasons for this has been that local officials find it difficult to enforce the requirement on property owners who do not have the financial resources to both repair and bring the buildings into compliance. In the last ten years, financial resources to mitigate substantially damaged buildings have improved. With passage of the National Flood Insurance Reform Act of

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1994, activities that support reducing future damages to existing flood-prone buildings that have been substantially damaged now include: Increased Cost of Compliance coverage and the Flood Mitigation Assistance (FMA) program.

In addition, FEMA’s Hazard Mitigation Grant Program (HMGP) under Section 404 of the Robert T. Stafford Disaster Relief and Emergency Relief Act of 1988, as amended, also provides considerable resources in reducing or eliminating future flood damages to existing structures after a flood disaster. The Disaster Mitigation Act of 2000, which amended the Stafford Act, will provide additional resources for mitigation projects and planning. These activities are further described under “Other NFIP Activities” below. FEMA’s resources combined with resources from other Federal agencies, such as the Department of Housing and Urban Development and the Small Business Administration, have improved the level of compliance with the substantial damage requirement by providing property owners with the financial help they need to meet Program requirements.

A number of the existing Pre-FIRM structures experience repeat flood damages and represent a significant problem for the Program. NFIP Repetitive Loss Properties have been generally defined as those that have had at least two losses of $1,000 or more within any 10-year period. Currently there are about 45,000 insured repetitive loss structures in the country. These buildings represent a serious drain on the National Flood Insurance Fund and have accounted for nearly one-third of all paid losses. The NFIP Regulations do not include specific criteria to address repetitively damaged structures similar to the substantial damage requirement. However, FEMA has developed a Repetitive Loss Strategy to identify properties throughout the country that are most at risk for repeat flooding, and to reduce their exposure through targeted buyouts, relocation, and elevation. The strategy targets a subset of Repetitive Loss Properties that includes currently insured properties that have 2 or 3 losses where the cumulative flood insurance claim payments are greater than the building value or those properties that have had 4 or more losses. These represent around 10,000 buildings. FEMA’s mitigation programs are being focused on these buildings, which will result in significant reductions in NFIP claims and overall flood damages as they are mitigated.

Ordinance Adoption

Once FEMA provides a community with the flood hazard information upon which floodplain management regulations are based, the community is required to adopt a floodplain management ordinance that meets or exceeds the minimum NFIP requirements. FEMA can suspend communities from the Program for failure to adopt once the community is notified of being flood-prone or for failure to maintain a floodplain management ordinance that meets or exceeds the minimum requirements of the NFIP. The procedures for suspending a community from the Program for failure to adopt or maintain a floodplain management ordinance that meets or exceeds the minimum requirements of the NFIP are established in the NFIP regulations at 44 CFR §59.24(a) and (d).

Since 1968, just over 2,300 communities have been suspended for failure to adopt. Most of these communities subsequently adopted a compliant ordinance and were eventually reinstated into the Program. A community either has or does not have a compliant ordinance. There are currently 261 communities suspended from the Program for failure to adopt floodplain

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management regulations that meet or exceed the minimum NFIP requirements. These are generally small communities with little or no floodplain development.

In these suspended communities, flood insurance is not available to property owners. In addition, these communities are subject to limitations on Federal financial assistance in Section 202(a) of 1973 Act which prohibits Federal officers or agencies from approving any form of loan, grant, guaranty, insurance, payment, rebate, subsidy, disaster assistance loan or grant, for acquisition or construction purposes within SFHAs. For example, this would prohibit mortgage loans guaranteed by the Department of Veterans Affairs, insured by the Federal Housing Administration, or secured by the Rural Economic and Community Development Services. In the case of disaster assistance under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, as amended, this prohibition only applies to assistance in connection with a flood.

Furthermore, Section 202(b) of the 1973 Act requires federally regulated lending institutions to notify the purchaser or lessee of improved real property situated in a SFHA whether Federal disaster assistance will be available when such property is being used to secure a loan that is being made, increased, extended or renewed.

Monitoring Community Compliance

FEMA monitors communities to ensure that they have adopted an ordinance that meets or exceeds the minimum NFIP floodplain management criteria and to ensure that they are effectively enforcing their ordinance. While the NFIP floodplain management criteria are administered by States and communities through their floodplain management regulations, FEMA’s role is to provide technical assistance and to monitor communities for compliance with the minimum NFIP criteria. If communities do not adequately enforce their floodplain management regulations, they can be placed on probation and potentially suspended from the Program following probation.

FEMA or States on behalf of FEMA conduct Community Assistance Visits (CAVs) and Community Assistance Contacts (CACs) to monitor community floodplain management programs. A CAV is a scheduled visit to an NFIP community for the purpose of conducting a comprehensive assessment of the community’s floodplain management program. The CAV is also used as an opportunity to provide technical assistance to the community. A CAV typically involves a tour of the floodplain, a meeting with local floodplain management officials, and an examination of the community’s floodplain development permit and variance files. The visit is documented in a follow-up letter to the community. If any issues are identified during the CAV, such as a possible floodplain violation or program deficiency, these issues are also addressed in the follow-up letter. The community is responsible for resolving any program deficiencies or remedying any violations identified.

A CAC is used to establish a contact with a community for the purpose of determining if any problems or issues exist and to offer the community assistance if necessary. CACs can be conducted by means of a telephone call or brief visit. While CACs are a less comprehensive assessment of a community’s floodplain management program, sufficient information about the

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community’s floodplain management program can be obtained in order to determine whether there are more serious floodplain management problems in the community.

Several thousand local officials are contacted annually through CAVs, CACs, and other activities such as workshops and formal floodplain management courses. Also, a number of local officials directly contact State or FEMA regional staff for technical assistance. Because of resource limitations in conducting CAVs and CACs in any given year, FEMA has established criteria in prioritizing which communities will be visited or contacted. Basically, a CAV should be conducted in communities with known or suspected program deficiencies or potential violations or communities experiencing development in the floodplain. CACs are not conducted in communities where more serious floodplain problems or issues are known or suspected. CACs are generally used as a screening tool for determining whether a community should receive the level of attention of a CAV. Together, they provide FEMA with an effective means of monitoring participating communities and providing technical assistance.

FEMA staff can also monitor enforcement by communities through applications for flood insurance policies, which often identify buildings that are potentially in violation of the NFIP minimum floodplain management requirements. In addition, FEMA can monitor enforcement by communities through the LOMR (Letter of Map Revision) process. Requests through the LOMR process to remove land from the floodplain designation based on fill may indicate that floodplain areas have been improperly filled such as in a floodway or in a coastal V Zone or that a building has its lowest floor below the BFE. The respective FEMA regional office will follow-up with the community to determine whether the building or floodplain development is in compliance with the community’s floodplain management regulations and may conduct a CAV if warranted.

Actions Against Communities For Failure to Enforce

Most deficiencies in a community’s floodplain management program or violations of local ordinances are generally due to lack of understanding of the NFIP requirements, lack of technical skills, failure to understand the rationales behind the NFIP requirements, or lack of an appreciation of the insurance implications and other consequences of a decision. Most problems that are identified can be solved through community assistance efforts. When this does not happen, FEMA has procedures in place to conduct an enforcement action in order to obtain compliance by the community. If a community does not adequately enforce its floodplain management regulations, it can be placed on probation or suspended from the Program.

Following a CAV, the community must be given reasonable time to demonstrate buildings are compliant with the ordinance or it must correct any program deficiencies and remedy any violations identified during the visit. This affords the community the appropriate due process. It also makes placing a community on probation, if necessary, and potentially suspending a community legally defensible. As long as a community is making adequate progress toward correcting program deficiencies and remedying violations, FEMA will not initiate formal probation. It is important that the community work toward resolving its problems to ensure that future flood damages and potential loss of life are mitigated. FEMA, however, will initiate probation in a community that does not make sufficient progress in resolving its floodplain management issues or chooses not to address them. The procedures for placing a community on

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probation or suspending a community from the Program are established in the NFIP regulations at 44 CFR §59.24(b) and (c).

When it becomes necessary to initiate probation, FEMA notifies the community that it will be placed on probation upon 120 days if the community does not demonstrate it has corrected its program deficiencies and has remedied violations to the maximum extent possible. While probation has no effect on the availability of flood insurance, an additional charge of $50 is added to the premium for each policy for a period of at least one year. A 120-day notice is provided to the community so that FEMA can then give policyholders adequate notification of the impending probation and the additional premium that will be charged. According to the NFIP regulations, FEMA must provide policyholders a notice at least 90 days before the probation is to begin. During the 120-day period, the community has the opportunity to avoid probation by demonstrating compliance with the NFIP requirements.

When a community is placed on probation, FEMA sends a letter to the community establishing new compliance deadlines. If the community fails to take remedial measures during the period of probation, the community may be suspended from the NFIP. When a community is suspended from the NFIP, flood insurance is no longer available. Also, the community is subject to limitations on Federal financial assistance described above under Ordinance Adoption.

As of July 23, 2002, there are 7 communities currently on probation nationwide. Since 1986, 107 communities have been sent a formal notice that they will be placed on probation if they do not address the program deficiencies or violations identified. Out of the 107 communities, 51 have actually been placed on probation. The remaining communities satisfactorily resolved their program deficiencies and violations before being placed on probation. Nine communities were eventually suspended from the Program for failure to enforce the community’s floodplain management ordinance and 4 of those communities are currently suspended for noncompliance. The 5 remaining communities corrected their deficiencies and were reinstated into the NFIP.

Most communities comply with NFIP requirements prior to FEMA’s issuing a probation notice. Communities often recognize that it is in everyone’s best interest to bring the community into compliance before probation or suspension occurs. One of the primary reasons communities comply is to avoid disruptions in the real estate market that would result with the potential loss of flood insurance.

FEMA must follow its procedures for placing communities on probation or suspending communities from the Program to ensure that adequate notifications and due process are provided.

Actions Against Individual Properties For Failure to Comply

There are certain options that can be applied to individual structures that are determined to be in violation of the community’s floodplain management ordinance. If an insured structure is identified as a violation of the community’s floodplain management ordinance, FEMA can have the insurance company that insures the building review the information and possibly rerate the structure to reflect

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the increased risk to the structure. This can result in significantly higher flood insurance rates on the structure, which may cause the property owner to bring the building into compliance.

In addition, Section 1316 of the 1968 Act provides for the denial of flood insurance coverage for any property which the Administrator of the FIMA finds has been declared by a duly constituted State or community to be in violation of State or community floodplain management regulations. Section 1316 can only be implemented in instances when an appropriate authority in the State or community submits a declaration to the Administrator of the FIMA specifically stating that the structure is a violation. Currently, there are over 500 structures that have been denied flood insurance coverage under Section 1316.

State Floodplain Management Role

States also have a role in the NFIP and many have established State floodplain management programs. Each State has designated an NFIP State Coordinating Agency as a point of contact for the NFIP. Generally, the State Coordinating Agency is the State environmental or natural resources agency or the State emergency management agency. Most States provide technical assistance to communities using FEMA funding under the Community Assistance Program (CAP) – State Support Services Element, their own funding, or a combination of the two. CAP was developed in recognition that there were not sufficient FEMA staff resources to provide technical assistance to or monitor compliance with all the participating NFIP communities (currently 19,700) and that other resources would have to be used.

Many States have adopted floodplain management statutes and regulations and have established and funded their own floodplain management programs. States must also have floodplain management regulations or executive orders in place that meet the minimum requirements of the NFIP for State-owned properties in SFHAs. Where a State requires that communities adopt more restrictive requirements than the NFIP minimum requirements, such as a more restrictive floodway or additional freeboard (requiring new construction to be elevated to a level 1 or more feet higher than the BFE), the State requirements take precedence over the NFIP minimum.

Post-Disaster Assessments

The Federal Insurance and Mitigation Administration (FIMA) and the FEMA Regional Offices conduct field investigations following major flood disasters to evaluate how well the NFIP floodplain management requirements performed. During these investigations, a team of experts inspect disaster-induced damages to residential and commercial buildings and other structures and infrastructure; conduct forensic engineering analyses to determine causes of structural and building component failures and successes; and evaluate local design practices, construction methods and materials, building codes, and building inspection and code enforcement processes. In addition, the teams make recommendations of actions that State and local governments, the construction industry, building code organizations, and individual property owners can take to reduce future damages and to protect lives and property in flood hazard areas.

Lessons learned by analyzing these building performance findings are also used by FIMA to fine-tune and improve NFIP Floodplain Management Regulations related to building

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performance, designs, methods, and materials and to develop technical guidance. These assessments are documented by FIMA in Flood Damage Assessment Reports and Building Performance Assessment Team (BPAT) reports. The information and findings in these reports are distributed widely using a variety of methods including technical manuals, workshops, and the Internet, and through formal training courses.

Providing Technical Assistance

In addition to technical assistance provided to communities as part of a CAV or CAC, FEMA staff provides technical and planning assistance through workshops and other contacts with community officials, property owners, builders and developers, architects and engineers, surveyors, lenders, and other NFIP constituents. Following major flood disasters, FEMA staff work closely with communities in providing technical assistance on the NFIP floodplain management requirements, particularly the substantial damage requirement, and on developing a reconstruction strategy for property impacted by floods to determine appropriate mitigation measures, such as elevation, acquisition, or relocation of flood-damaged structures.

FEMA conducts extensive training of local and State officials responsible for administering floodplain management programs. FEMA conducts a weeklong Resident Floodplain Management Course at FEMA’s Emergency Management Institute (EMI) several times a year. Through this course, FEMA has trained over 1,000 State and local floodplain management officials. An Independent Study Floodplain Management Course is also offered through EMI. FEMA also offers Resident Courses at EMI on mitigation, including a course on retrofitting flood-prone residential structures and a course on coastal construction. The FEMA regional offices and States deliver field-deployed versions of the EMI Floodplain Management Course as well as conduct throughout the year a number of floodplain management workshops that they develop.

Extensive publications have been produced on the NFIP, including mitigation measures that can be undertaken to minimize or eliminate future flood damages. Examples of these publications include:

• Homeowner’s Guide to Retrofitting: Six Ways to Protect Your House from Flooding • Answers to Questions about Substantially Damaged Buildings • Guidance for State and Local Officials on Increased Cost of Compliance Coverage • Managing Floodplain Development in Approximate Zone A Areas • Coastal Construction Manual • Floodplain Management Bulletin 1-98 Use of Flood Insurance Study (FIA) Data as Available Data • Technical Bulletin series on NFIP building criteria, such as TB 1-93, Openings in Foundation Wall and TB 2-93 Flood-Resistant Materials Requirements. (Note: there are currently 11 Technical Bulletins published.)

A complete list of publications can be found on FEMA’s website at www.FEMA.gov.

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FEMA and the American Planning Association (APA) jointly developed a publication entitled Subdivision Design in Flood Hazard Areas that encourages use of innovative planning tools to limit development in the floodplain. This document was published in 1997 as part of their Planning Advisory Service series in an effort to use APA’s distribution system to reach out to the planning community.

FEMA also promotes and coordinates governmental and non-governmental floodplain management activities and is a consulting agency to other Federal agencies on issues relating to implementation of Executive Order (E.O.) 11988, Floodplain Management. E.O. 11988 establishes a decision-making process for Federal agencies to avoid the long- and short-term adverse impacts on floodplains unless no practicable alternatives exist. If there is no practicable alternative, the Federal agency must mitigate to ensure that the action minimizes any loss of life and property and loss of natural and beneficial values.

Flood Insurance Section 1304 of the 1968 Act authorizes the Director of FEMA to establish and carry out “a national flood insurance program which will enable interested persons to purchase insurance against loss resulting from physical damage to or loss of real property or personal property” resulting from flood. Flood insurance provides the mechanism by which floodplain occupants are compensated for flood damages. Flood insurance also provides a way for some of the financial burden of flood losses to be removed from taxpayers, such as for Federal disaster assistance and casualty loss deductions under Federal income taxes.

The number of policies in force in the United States has increased from about 95,000 before the Flood Disaster Protection Act of 1973, to 2.2 million in 1989, to over 4.3 million currently. Any property owner of insurable property may purchase flood insurance coverage, provided that the community in which the property is located is participating in the NFIP. The amount of flood insurance coverage in force as of March 31, 2002 is over $606 billion.

The National Flood Insurance Fund (NFIF) is the instrument through which the Federal Government fulfills its financial responsibilities for the NFIP. In fiscal year 2001, FIMA took in about $1.5 billion in revenue, mostly from insurance premiums and a $30 Federal Policy fee on each policy sold or renewed. Revenues from insurance premiums are used to pay losses, pay interest to the Treasury, service the policies, and pay Increased Cost of Compliance claims that provide financial resources for protecting buildings from future flood damages. Revenue from the Federal Policy Fee supports almost all the flood mapping and floodplain management activities of the Program including the Flood Mitigation Assistance program.

Sale of Flood Insurance

FEMA works closely with the insurance industry to facilitate the sale and servicing of flood insurance policies. Flood insurance under the NFIP is sold to owners of property located in NFIP communities through two mechanisms: 1) through state-licensed property and casualty insurance agents and brokers who deal directly with FEMA; and 2) through private insurance companies with a program created in 1983 known as “Write Your Own” (WYO).

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The WYO Program was started to increase the NFIP policy count and geographic distribution of policies by taking advantage of the private insurance industry’s marketing channels and existing policy base to sell flood insurance. Eighty-six private insurance companies issue policies and adjust flood claims in their own names under the NFIP. The insurers receive an expense allowance and remit premium income in excess of this allowance to the Federal Government. FEMA pays losses through a letter of credit and sets the rates, coverage limitations, and eligibility requirements. The premium charged for NFIP flood coverage by a WYO Company is the same as that charged by the Federal Government through the direct program. Currently about 95% of the flood policies issued under the NFIP are written through the WYO Program.

The NFIP is not the only source of flood insurance. Businesses have been able to purchase flood insurance under Difference In Conditions policies from some insurance companies over the years. Flood coverage for residential homeowners has been more difficult to acquire from the private insurance market. The often-catastrophic nature of flooding has kept most insurers, outside of the NFIP, from writing this coverage. There are companies, such as Lloyds of London, that will, on a limited basis, provide flood insurance to some properties.

Flood Insurance Policy

The Standard Flood Insurance Policy (SFIP) specifies the terms and conditions of the agreement of insurance between FEMA or a WYO company as the Insurer and the Insureds. Insureds in NFIP communities include owners, renters, builders of buildings that are in the course of construction, condominium associations, and owners of residential condominium units.

"Flood" is defined in the SFIP, in part, as:

“A general and temporary condition of partial or complete inundation of two or more acres of normally dry land area or of two or more properties (at least one of which is your property) from overflow of inland or tidal waters, from unusual and rapid accumulation or runoff of surface waters from any source, or from mudflow.”

The SFIP is issued on one of three available policy forms, depending on the occupancy of the building, to provide coverage for the peril of flood.

• The Dwelling Form is used to insure 1-4 family buildings and individual residential condominium units. • The General Property Form covers residential buildings of more than 4 families as well as non-residential risks. • The Residential Condominium Building Association Policy (RCBAP) Form insures associations under the condominium form of ownership.

Eligible Structures

Sections 1305 of the 1968 Act establishes the scope of the flood insurance program for eligible structures. As a priority, the 1968 Act requires that flood insurance be made available to 1-4 family residential buildings, small businesses, and churches. It gave permission after study to

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extend flood insurance to other residential properties, other business properties, agricultural properties, properties occupied by private nonprofit organizations, and properties owned by State or local governments. Currently insurance is available for all these types of properties and their contents with limited exceptions. Property owners in NFIP communities may purchase flood insurance whether the building or its contents is located in or outside the floodplain. In order to be eligible for flood insurance, a structure must have at least 2 solid walls and a roof, be principally above ground, and not entirely over water. This includes manufactured (i.e., mobile) homes that are anchored to permanent foundations and travel trailers without wheels that are anchored to permanent foundations and are regulated under the community's floodplain management and building ordinances or laws. Contents of insurable walled and roofed buildings are insurable under the policy as a separate coverage.

Buildings entirely over water or principally below ground, gas and liquid storage tanks, animals, birds, fish, aircraft, wharves, piers, bulkheads, growing crops, shrubbery, land, livestock, roads, machinery or equipment in the open, and generally motor vehicles are not insurable. Most contents and finishing building materials located in a basement are not covered. Similarly, this coverage limitation applies to enclosures below the lowest elevated floor of an elevated building constructed after the FIRM became effective.

Section 1316 of the 1968 Act authorizes FIMA to deny flood insurance "for any property which the Director finds has been declared by a duly constituted state or local zoning authority, or other authorized public body, to be in violation of a state or local laws, regulations, or ordinances". Section 1316 is initiated when an appropriate authority in the State or community submits a declaration to the Administrator of the FIMA specifically stating that the structure is a violation. When the Administrator of the FIMA makes a finding of a valid declaration of a violation, flood insurance is not available and no new policy can be written to cover the building, nor can an existing policy be renewed.

Coastal Barrier Resources System

The purchase of flood insurance is also limited in the Coastal Barrier Resources System. Congress passed laws limiting Federal expenditures in certain coastal areas and designating them as a part of the Coastal Barrier Resources System (CBRS) or as Otherwise Protected Areas (OPAs). In these areas, there is a prohibition for the expenditure of most Federal funds. These prohibitions refer to "any form of loan, grant, guarantee, insurance, payment, rebate, subsidy or any other form of direct or indirect Federal assistance," with specific and limited exceptions.

Older buildings constructed before dates established by the Coastal Barrier Resources Act of 1982 and the Coastal Barrier Improvement Act of 1990 remain eligible for Federal flood insurance while new construction or substantially improved structures located within these designated areas are not eligible for flood insurance. If, at the time of a loss, it is determined that a policy has been inadvertently issued on new construction or substantial improvements located in a CBRS area, any claim will be denied, the policy canceled, and the premium refunded. The CBRS areas are located in nearly 400 communities on the Atlantic and Gulf coasts and along the Great Lakes shores, and are delineated on the communities' flood maps and cover an estimated 3 million acres.

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Waiting Period

Unlike other property insurance, agents who write policies under the NFIP cannot “bind” coverage. A purchaser of flood insurance must wait 30 days from the date the application is completed and the premium presented before the policy becomes effective. A change in the waiting period from 5 days to 30 days was included as part of the National Flood Insurance Reform Act of 1994. This addressed a problem encountered where individuals with properties on larger rivers could wait until properties many miles upriver were flooding before purchasing coverage.

There are however a several exceptions to the 30-day waiting period. For example, the 30-day waiting period will not apply when a new flood insurance policy is required in connection with the making, increasing, extension, or renewal of a loan, such as a second mortgage. The 30-day waiting period will not apply when an additional amount of insurance is required during the 13- month period beginning on the effective date of a map revision. Also, the 30-day waiting period does not apply when a lender discovers that a loan that they have made is in a SFHA and is required to carry flood insurance under the Mandatory Flood Insurance Purchase Requirement.

Coverage Amounts

Under the NFIP there are maximum amounts of coverage available under the Emergency Program and the Regular Program. Under the Emergency Program, non-actuarial, federally subsidized rates in limited amounts are available prior to completion of a community’s Flood Insurance Study (FIS). Once more detailed risk data is provided to the community in the form of a FIRM and a FIS, the community is entered into the Regular Program and full limits of coverage are made available. Nearly all participating communities are in the Regular Program, and individuals can purchase flood insurance up to the following amounts.

• Residential 1-4 family unit buildings and individual residential condominium units are written under the Dwelling Form and are eligible for up to $250,000 in building coverage and up to $100,000 in personal property coverage. • Residential buildings containing more than 4 units are eligible for up to $250,000 in building coverage and up to $100,000 on personal property. • Non-residential buildings are eligible for up to $500,000 in building coverage and up to $500,000 on personal property written on the General Property Form. • Under the RCBAP Form a condominium association can purchase coverage on a building, which includes all the units within the building and the improvements within the units, up to $250,000 times the number of units within the residential building. Personal property coverage on the form is limited to $100,000 per building.

The average amount of insurance coverage purchased under the NFIP is $131,670, which includes coverage for the building and its contents.

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Other Coverages

In addition to providing coverage for Building and Personal Property, the SFIP also provides Other Coverage for Debris Removal, Loss Avoidance Measures, and, under the Dwelling Form, coverage for Condominium Loss Assessments if the policy insures a condominium unit. The SFIP includes coverage for Pollution Damage if the damage results from a flood. All of these coverages are provided within the purchased policy limits.

All three policy forms provide Increased Cost of Compliance (ICC) coverage. ICC coverage provides for the payment of a claim to help pay for the increased costs to comply with State or community floodplain management laws or ordinances after a flood in which a building has been declared substantially damaged or repetitively damaged. When an insured building is damaged by a flood and the community declares the building to be substantially or repetitively damaged, thus triggering the requirement to comply with a community floodplain management ordinance, ICC will help pay for the cost to elevate, relocate, demolish, or floodproof (non-residential buildings only) up to a maximum of $20,000. This coverage is in addition to the building coverage for the repair of actual physical damages from flood under the SFIP, but the total paid cannot exceed the maximum limit set by Congress for that type of building.

The maximum limit of $20,000 will help property owners insured under the NFIP to pay for a portion or, in some cases, all of the costs of undertaking actions to protect homes and businesses from flood losses. In addition, an ICC claim payment can be used to complement and supplement funds under other mitigation programs such as the Flood Mitigation Assistance program and FEMA’s Hazard Mitigation Grant Program to assist communities in implementing measures to reduce or eliminate the long-term risk of flood damage to buildings insured under the NFIP. As of November 30, 2001, approximately 689 claims have been paid under the ICC coverage to elevate, relocate, demolish, or floodproof structures for just over $7.5 million.

Ratemaking

The 1968 Act separated the flood insurance ratemaking process into two distinct categories: subsidized rates and actuarial rates. Congress authorized the NFIP to offer policies at subsidized rates (at less than full actuarial risk rates) to existing buildings constructed on or before December 31, 1974 or before the effective date of the initial FIRM, whichever is later. Congress concluded that these buildings were built without the occupants’ full knowledge and understanding of the flood risk, and to rate them using the actuarial rates might make the flood insurance prohibitively expensive. FEMA estimates that risks in this class are paying on average only 35 to 40 percent of what the full risk premium should be to fund the long-term expectation of the flood losses to the building. Only such general rating factors as flood-risk zone, occupancy type, and building type are used to rate these buildings for flood insurance. Even though premiums for policies on existing buildings are subsidized, floodplain occupants pay for at least part of the cost of the insurance and no longer need most disaster assistance. (Note: Subsidized premiums mean that the insured is paying less than their full-risk premium. The difference between this full-risk premium and the amounts the insured pays is revenue that is foregone by the NFIP. There is no annual transfer from general taxpayer revenue.)

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In exchange for this subsidized insurance, participating communities must require new construction and substantially improved structures to meet the minimum requirements of the NFIP. The 1968 Act requires that FEMA charge full actuarial rates reflecting the complete flood risk to buildings constructed or substantially improved on or after the effective date of the initial FIRM for the community or after December 31, 1974, whichever is later. Once FEMA identifies the flood risk and makes the information available to communities, actuarial rating assures that those located in such areas bear the full risks associated with buildings in flood-prone areas. The flood insurance rates take into account a number of different factors including the flood-risk zone shown on the FIRM, the elevation of the lowest floor above or below the BFE, the type of building, the number of floors, and the existence of a basement or an enclosure.

The flood-risk zone and the BFE are specific factors that can differentiate the flood risk in various areas of the country. For example, FEMA designates certain shallow flooding areas as AO and AH zones and some riverine areas as A and AE zones. FEMA designates areas subject to damage by waves and storm surge as V and VE zones and usually designates coastal areas landward of the V zone as A and AE zones. This difference reflects both the lower expectation of loss and our actual loss experience for these zones.

While FEMA prints rate tables showing all possible flood risk zones and uses them for the entire country, FEMA does not show the same zones on every FIRM. For example, communities in Utah or Kansas do not have V zones because they are not subject to wave action and storm surge. However, where the same zone designation is used in two different areas of the country, it is because our engineering studies have shown that the degree of risk is very similar. Policyholders in AE and VE zones in one State are paying the same rates as policyholders in another State, if the lowest floor elevation of buildings is the same in relation to the BFE. This is because their risk of flooding is statistically the same.

The insurance aspects of the NFIP have important implications for floodplain management. Buildings that comply with community floodplain management regulations pay premiums based on flood insurance rates that are in most cases significantly lower than the subsidized rates charged Pre-FIRM buildings. However, buildings constructed in violation of the community’s floodplain management ordinance pay much higher rates, which can be thousands of dollars a year for buildings substantially below the required elevations. FEMA bases the flood insurance rates for Post-FIRM structures on a building’s exposure to flood damage. Based on our loss experience on older structures built before establishment of NFIP minimum floodplain management requirements, FEMA can generally expect that they will suffer as much as 5 times the flood damage that compliant new structures experience. New buildings with non-compliant ground level enclosures in coastal areas can actually represent risks that are at least as poor as the average older Pre-FIRM buildings.

Claims

Claims under the NFIP require, as in other insurance, that the insured file a Proof of Loss. This must be submitted within 60 days of the loss, unless waived by the Administrator of the FIMA. Claims can be adjusted using either an independent adjuster or an adjuster employed by a WYO company. Under all NFIP policies, the insured pays a portion of the loss through the application

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of a deductible. In FY 2001, the NFIP paid 43,525 claims with an average claim payment of $26,079.

The largest loss payout from a single flood event occurred in June 2001 as a result of Tropical Storm Allison, the NFIP’s first “billion dollar storm”. The second largest flood event in dollars paid was in Louisiana in May 1995 with payments totaling $583,952,604 and the third largest flood event in dollars paid resulted from Hurricane Floyd in September 1999 with payments totaling $433,384,943.

The long-term goal of the NFIP is to be actuarially sound, including consideration for potential catastrophic loss years. In the near term, in establishing a fiscally sound program, the NFIP overall is intended to generate premium at least sufficient to cover expenses and losses relative to what is called the “historical average loss year”. Since the NFIP’s underwriting experience does not include truly catastrophic loss years, the historical average is less than the true long-term average. However, the premium income to the program is made up of two distinct pieces – Pre- FIRM polices charged less than full-risk premiums and Post-FIRM (and other) policies charged full-risk premiums including catastrophic loss considerations.

The NFIP’s historical average loss year is approximately $700 million in loss payments. At this level, FIMA can maintain a Program that is self-supporting for that year. The NFIP has not been capitalized, but generates surplus during less-than-average-loss years and has borrowing authority with the U.S. Treasury to cover losses in the event that policyholder funds and investment income are inadequate. It does not use taxpayer funds to pay claims, operating expenses, or offset any shortfalls in premium from policies paying a subsidized flood insurance rate. Having twenty-six percent of policyholders paying significantly less than full-risk premiums impedes the ability to generate surplus or to repay borrowed funds, which depends on levels of annual losses that are highly variable.

However, the possibility of borrowing funds from the Treasury would be present even if all NFIP policyholders paid full-risk premiums should a catastrophic or a series of catastrophic flood events occur. When the NFIP borrows money, it pays the Treasury back with interest. The NFIP paid off the Treasury debt in June 2001 from a high of $922 million in 1999. However, because of the extent of the flooding from Tropical Storm Allison in Texas and Louisiana resulting in over 30,000 claims, FEMA had to borrow funds from the Treasury.

Since 1969, the NFIP has paid $11.9 billion in losses that would otherwise have been paid by taxpayers through disaster assistance or borne by home and business owners themselves. Moreover, NFIP floodplain management and hazard identification activities have significantly reduced the frequency and severity of flood damages to buildings built in compliance with NFIP standards. Structures built to NFIP criteria experience 80% less damage through reduced frequency and severity of losses. The NFIP floodplain management requirements are estimated to save $1 billion per year.

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Marketing

Today, many Americans are either unaware that flood damage is not covered by their homeowner’s insurance policy or they are in denial about the serious flood risks to which they are exposed. Definitive figures on the potential market for flood insurance are difficult to obtain. A conservative estimate is that only one-third to one-half of those in SFHAs have coverage. For a number of flood disasters in the past few years, only 10-20% of the victims in SFHAs had flood insurance coverage. The remaining 80-90% must rely on taxpayer-funded Federal disaster assistance, which is very limited, loans which must be paid back, tax write-offs, or savings to help them recover.

The insurance industry, which has been the major mechanism for the sale of flood insurance since the Program’s inception, has repeatedly stated that the key to selling flood insurance is public awareness on a national scale. Working with them, FEMA has designed and continues to refine flood insurance advertising and promotional activities to educate consumers, heighten awareness, and make the insurance agent’s job easier.

FEMA’s strategy for increasing the number of Americans insured against flood damage includes:

• Financial incentives for WYO insurance companies to increase and retain policyholders. • Cover America II—a public awareness and education campaign primarily targeting consumers to stimulate interest in buying flood insurance. (The campaign also reaches insurance agents and lenders, encouraging their active involvement in flood insurance.) • Facilitating lender compliance with statutory flood insurance requirements through training, guidance materials, and regular communication with lending regulators, government sponsored enterprises, and lender trade associations. • NFIP training for insurance agents via live seminars and on-line training modules. • Simplifying NFIP processes to make it easier for agents to sell and consumers to buy. • Improving retention of policies.

Mandatory Flood Insurance Purchase Requirement From 1968 until the adoption of the Flood Disaster Protection Act of 1973, the purchase of flood insurance was voluntary. Property owners could make their own decision whether to purchase flood insurance. Unfortunately, the response nationwide to purchasing flood insurance voluntarily was less then enthusiastic. Just over 95,000 policies were in force in 1972, and very few victims from Tropical Storm Agnes that hit that same year had flood insurance.

The 1973 Act mandated flood insurance coverage for many properties. For the first time, regulated lending institutions could not make, increase, extend, or renew any loan secured by improved real estate located in a SFHA in a participating NFIP community unless the secured building and any personal property securing the loan were covered for the life of the loan by flood insurance. Congress established this requirement because, after major flood disasters, it became evident that relatively few individuals in eligible communities who sustained flood damage had purchased flood insurance.

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Also, Federal officers or agencies could not approve any form of loan, grant, guaranty, insurance, payment, rebate, subsidy, disaster assistance loan or grant, for acquisition or construction purposes within a SFHA in a participating community unless the building and any personal property to which such financial assistance relates were covered during the life of the property.

The Housing and Community Development Act of 1977, which amended section 202(b) of the 1973 Act, permitted regulated lending institutions to make conventional loans in a SFHA of a non-participating community. It required them to notify the purchaser or lessee of improved property situated in a SFHA of a non-participating community and used to secure a loan being made, increased, extended, or renewed, whether Federal disaster assistance for flood damage will be available.

Furthermore, Section 202(a) of the 1973 Act prohibits Federal officers or agencies from approving any form of loan, grant, guaranty, insurance, payment, rebate, subsidy, disaster assistance loan or grant, for acquisition or construction purposes within SFHAs of non- participating communities. For example, this would prohibit mortgage loans guaranteed by the Department of Veterans Affairs, insured by the Federal Housing Administration, or secured by the Rural Economic and Community Development Services. In the case of disaster assistance under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, as amended, this prohibition only applies to assistance in connection with a flood.

Following the multi-billion dollar flood disaster in the Midwest in 1993, Congress enacted the National Flood Insurance Reform Act of 1994. One of the purposes of the 1994 Act is to improve compliance with the mandatory purchase requirements of the NFIP by lenders, servicers, and secondary-market purchasers. Congress was concerned over the low level of insurance participation among eligible property owners and resulting increases in Federal disaster relief payments. While FEMA administers the NFIP, it has no responsibility or authority under either the 1973 Act or 1994 Act with respect to lender compliance with the Mandatory Flood Insurance Purchase Requirement – this responsibility falls on the Federal agency lender regulators and secondary-market purchasers though FEMA prepares guidance materials with respect to the NFIP and the Mandatory Flood Insurance Purchase Requirement.

The law requires Federal agency lender regulators to develop regulations to direct their federally regulated lenders not to make, increase, extend, or renew any loan on applicable property unless flood insurance is purchased and maintained. The law also addresses the responsibility of regulated lending institutions and Government-Sponsored Enterprises (GSEs) (i.e., Fannie Mae and Freddie Mac) in providing a notice of and requiring flood insurance coverage for the term of the loan on buildings located in any SFHA in participating NFIP communities.

The 1994 Act significantly tightens the 1973 Act by imposing important new obligations on both mortgage originators and servicers, including mandatory escrow requirements for flood insurance and mandatory provisions for “forced placement” of insurance. Specifically, the 1994 Act requires the force placement of flood insurance if a lender or servicer determines that the building securing the loan is not adequately insured. Also, the 1994 Act grants statutory authority to a lender or servicer to purchase flood insurance for the building and charge a

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premium to the borrower if the building is in an SFHA. In addition, Congress designated for the first time in the 1994 Act a specific range of regulatory civil monetary penalties that may be imposed administratively when it is found that a “pattern or practice of committing violations” has occurred by regulated lenders.

It is the responsibility of the lender to: • Determine whether the building offered as security for a loan is, or will be located in an SFHA; • Document the determination using the Standard Flood Hazard Determination Form; • Require flood insurance to the appropriate amount when necessary; • Ensure that flood insurance is maintained during the life of the loan; and • Ensure that flood insurance is purchased and maintained if the lender becomes aware that the building involved subsequently is located in an area that has been remapped as a SFHA.

Although the intent of the 1994 Act is to require borrowers to purchase flood insurance, the Act’s directives and prohibitions are directed to federally-regulated primary lenders and to secondary market entities involved in mortgage loan transactions. The flood insurance requirement does not apply to lenders or servicers that are not federally regulated or do not sell loans to GSEs such as Fannie Mae and Freddie Mac or other GSEs.

It is a prerequisite that a designated loan have flood insurance as a condition of closing. If a borrower will not voluntarily obtain coverage and a lender is unable to force place coverage, the lender must deny the loan or exercise the sanction provisions of the loan document if the loan already has been made. A lender cannot accept a borrower’s assurance that he or she will obtain insurance coverage in the future or grant the lender indemnity while seeking coverage. Closing a designated loan without flood insurance coverage in place constitutes a violation of the regulation implementing the Mandatory Purchase Requirement.

Lenders on their own initiative may require the purchase of flood insurance even if a structure is located outside the SFHA. A decision to require coverage under such circumstance is not compelled by statute. Lenders have this prerogative to require flood insurance to protect their investments.

Other NFIP Activities Community Rating System

The NFIP’s Community Rating System (CRS) provides discounts on flood insurance premiums in those communities that establish floodplain management programs that go beyond NFIP minimum requirements. Under the CRS, communities receive credit for more restrictive regulations, acquisition, relocation, or floodproofing of flood-prone buildings, preservation of open space, and other measures that reduce flood damages or protect the natural resources and functions of floodplains.

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The CRS was implemented in 1990 to recognize and encourage community floodplain management activities that exceed the minimum NFIP standards. Section 541 of the 1994 Act amends Section 1315 of the 1968 Act to codify the Community Rating System in the NFIP, and to expand the CRS goals to specifically include incentives for reducing the risk of flood-related erosion and for encouraging measures that protect natural and beneficial floodplain functions. These goals have been incorporated into the CRS and communities now receive credit towards premium reductions for activities that contribute to them.

Under the CRS, flood insurance premium rates are adjusted to reflect the reduced flood risk resulting from community activities that meet the three goals of the CRS:

(1) Reduce flood losses, i.e., • Protect public health and safety, • Reduce damage to property, • Prevent increases in flood damage from new construction, • Reduce the risk of erosion damage, and • Protect natural and beneficial floodplain functions;

(2) Facilitate accurate insurance rating; and

(3) Promote the awareness of flood insurance.

There are 10 CRS classes: Class 1 requires the most credit points and gives the largest premium reduction; Class 10 receives no premium reduction. CRS premium discounts on flood insurance range from 5 percent for Class 9 communities up to 45 percent for Class 1 communities. The CRS recognizes 18 creditable activities, organized under four categories: Public Information, Mapping and Regulations, Flood Damage Reduction, and Flood Preparedness.

For example, credits are provided for use of future conditions hydrology and more restrictive floodway standards, prohibiting fill in the floodway, and adopting compensatory storage regulations, innovative land development criteria, stormwater management regulations, other higher regulatory standards, and local floodplain management plans. Credits are also provided in the CRS for preserving open space in their natural state and for low-density zoning and for acquiring and clearing buildings from the floodplain and returning the area to open space. The 2002 CRS Coordinator’s Manual includes a new section, “Land Development Criteria,” which specifically credits community land development regulations that limit development in the floodplain or provide incentives to limit floodplain development. Communities receive credits for adopting smart growth land development criteria and for creating open space through their land development process.

There are now over 900 communities receiving flood insurance premium discounts based on their implementation of local mitigation, outreach, and educational activities that go well beyond minimum NFIP requirements. Although premium discounts are one of the benefits of participation in the CRS, these communities are carrying out important activities that save lives, reduce property damage, and protect the natural and beneficial functions of floodplains. These 900-plus communities represent a significant portion of the nation’s flood risk as evidenced by

32 NFIP Description August 1, 2002

the fact that they account for over 66% of the NFIP’s policy base. Communities receiving premium discounts through the CRS cover a full range of sizes from small to large, and a broad mixture of flood risks, including coastal and riverine.

The CRS – its development and implementation – has benefited from the advice and effort of Federal, State, and local officials, professionals with expertise in floodplain management and insurance, and academics. A multidisciplinary approach led to successful implementation of the program and this same approach has been employed in reviewing and refining the CRS over the last 10 years.

Flood Mitigation Assistance Program

The Flood Mitigation Assistance (FMA) program provides funding to assist States and communities to accomplish flood mitigation planning and implement measures to reduce future flood damages to structures. This program is authorized under the 1994 Act. These funds can be used before disaster strikes.

The FMA program provides funding up to $20 million a year with a 75/25 cost share. Examples of eligible activities for planning grants include conducting local planning meetings to obtain citizen input; contracting for engineering or planning technical assistance; surveying structures at risk of flooding; and assessing repetitive losses. Only projects for mitigation activities specified in an approved Flood Mitigation Plan are eligible for project grants. For example, a community may determine in its plan that acquisition of structures would be the preferred alternative for floodway areas, while elevation may be more appropriate solution in other areas of the floodplain.

The purpose of FMA project grants is to assist States and communities in implementing flood mitigation projects to reduce the risk of flood damage to NFIP-insurable structures. Examples of eligible types of projects include:

• Elevation of NFIP-insured residential structures and elevation or dry-floodproofing of non- residential structures in accordance with 44 CFR §60.3. • Acquisition of NFIP-insured structures and underlying real property. • Relocation of NFIP-insured structures from acquired or restricted real property to sites not prone to flood hazards. • Demolition of NFIP-insured structures on acquired or restricted real property. • Beach nourishment activities that focus on facilitating natural dune replenishment through the planting of native dune vegetation and/or the installation of sand fencing. Placement of sand on beach is not eligible. • Minor physical flood control projects that do not duplicate the flood-prevention activities of other Federal agencies that address localized flood problem areas such as stabilization of stream banks, modification of existing culverts, creation of small stormwater retention basins. Major structural flood control structures, such as levees, dams, and seawalls are not eligible.

To be eligible for funding, a project must be:

• Cost-effective;

33 NFIP Description August 1, 2002

• Conform with applicable Federal and State regulations and executive orders; • Be technically feasible; • Conform with the Flood Mitigation Plan; and • Be located physically in a participating NFIP community that is not on probation.

The 1994 Act directs FEMA to “make every effort to provide mitigation assistance for mitigation plans proposing activities for repetitive loss structures and structures that have incurred substantial damage.” FEMA is focusing the FMA program on repetitive loss properties. The NFIP’s Repetitive Loss Strategy is to identify properties throughout the country that are most at risk for repeat flooding, and to reduce their exposure through targeted buyouts, relocation, and elevation. Approximately 45,638 repetitive loss properties are currently insured. These buildings are projected to cost the program $200 million per year in claims. New repetitive loss properties continue to emerge each year. FEMA has identified target buildings that are currently insured and have the greatest risk. There are 8,753 buildings with four or more losses, and l,160 buildings with two or three loses that exceed building value. Most of these target buildings are single-family residences. The limited FMA program funds ($20 million) are a key resource toward achieving this goal.

For projects that directly affect individual structures, such as elevation, acquisition, or relocation, each structure must have a flood insurance policy in force. FMA will be available to States and communities for mitigation activities that may benefit insurable properties not insured under the NFIP. For minor structural flood control projects, the effectiveness of the project can be based on benefits provided to insurable structures not insured under the NFIP.

Since 1996, FMA program funds have been used to acquire 484 flood-prone structures, relocate 16 flood-prone structures, elevate 491 flood-prone structures, and dry-floodproofed 8 flood- prone non-residential structures. To date, FEMA has allocated through FMA $97.6 million for projects; $9 million for plans; and $10.8 million for technical assistance.

The predecessor to the FMA program was Section 1362 of the 1968 Act, which was also intended to address existing flood-prone structures. This provision authorized the NFIP to purchase certain insured properties that had been either substantially or repetitively damaged and transfer the land to a public agency for open space. Funds were appropriated for Section 1362 annually from 1980 until 1994, when the FMA program replaced the Section 1362 program. Over the period during which funds were available, approximately 1,400 properties were purchased at a total cost of about $51.9 million.

Other FEMA Programs The following are other FEMA programs and activities that provide mitigation assistance and planning assistance in reducing the Nation’s flood losses.

Hazard Mitigation Grant Program

The Hazard Mitigation Grant Program (HMGP) was created in 1988 by Section 404 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (amendments

34 NFIP Description August 1, 2002

include the Hazard Mitigation and Relocation Assistance Act of 1993 and the Disaster Mitigation Act of 2000). The HMGP assists States and communities in implementing long-term hazard mitigation measures for all hazard types following a major disaster declaration. A key purpose of the HMGP is to ensure that the opportunity to take critical mitigation measures to protect life and property from future disasters is not lost during recovery and reconstruction process following a disaster.

HMGP funds are made available based on 15% of the estimated Federal funds to be spent on the Public and Individual Assistance programs (minus administrative expenses) for each disaster. States whose mitigation planning process meets enhanced criteria will be able to receive 20% funding under the regulations implementing the Disaster Mitigation Act of 2000. As of September 2001, 5,560 projects have been approved at a total Federal expenditure of approximately $2.6 billion.

Eligible mitigation measures under the HMGP include acquisition or relocation of flood-prone structures, elevation of flood-prone structures, seismic rehabilitation of existing structures, and strengthening of existing structures against wildfire. Additionally, up to seven percent of the HMGP funds may be used to develop State and/or local mitigation plans.

The State, as grantee, is responsible for administering the HMGP. Communities develop HMGP project applications and apply for funds through the State. The State notifies potential applicants of the availability of funding, defines a project selection process, ranks and prioritizes projects for funding, and forwards projects to FEMA for approval. The applicant, or subgrantee, carries out approved projects. The State or local government must provide a 25 percent match, which can be from a combination of cash and in-kind sources.

In response to flood hazards, FEMA’s primary emphasis is on nonstructural hazard mitigation measures. Nonstructural measures include the acquisition and demolition, relocation, elevation, or floodproofing of flood-damaged or flood-prone properties.

Since the program’s inception to September 2001, FEMA has permanently eliminated or significantly reduced future flood damages for over 25,801 at-risk structures through nonstructural measures as follows: acquisition of 22,564 properties; relocation of 733 properties; and elevation of 2,504 properties. The total Federal expenditure for these measures was $826,943,785.

Disaster Mitigation Act of 2000

The Disaster Mitigation Act (DMA) of 2000 amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988. The DMA authorizes the creation of a pre-disaster mitigation program to make grants to State, local and tribal governments. It also includes a provision that defines mitigation planning requirements for State, local and tribal governments. This new section (Section 322) establishes a new requirement for local and tribal mitigation plans; authorizes up to 7 percent of the HMGP funds available to a State to be used for development of State, local and tribal mitigation plans; and provides for States to receive an increased percentage of HMGP funds from 15 percent to 20 percent if, at the time of the disaster

35 NFIP Description August 1, 2002

declaration, the State has in effect a FEMA approved State Mitigation Plan that meets the criteria established in regulations.

Planning Initiatives

In addition to providing pre-and post-disaster planning assistance to States and communities, FEMA has undertaken a number of other initiatives to encourage communities to undertake mitigation planning and to incorporate natural hazards into their comprehensive land use planning. FEMA and the American Planning Association (APA) jointly developed a publication entitled Planning for Post-Disaster Recovery and Reconstruction that encourages use of planning tools to guide the rebuilding process for a safer and more sustainable community. This document was published in 1998 as part of their Planning Advisory Service series in an effort to use APA’s distribution system to reach out to the planning community.

FEMA also participated in and provided financial support to HUD’s Growing Smart initiative working with APA to develop a natural hazards element for a local comprehensive or general plan. FEMA has prepared a publication on “sustainability,” Planning for a Sustainable Future, The Link Between Hazard Mitigation and Livability. A series of “how-to” manuals on natural hazards planning is being developed for publication in Fall 2002. One of the “how-to” manuals, Understanding Your Risks: Identifying Hazards and Estimating Losses, was published in August 2001. FEMA expects to encourage State and community planning through the new pre-disaster mitigation provisions of Disaster Mitigation Act of 2000. Information on mitigation planning programs and guidance can be found at www.fema.gov/fima/planning.shtm.

36 NFIP Description August 1, 2002

A Key To The Acronyms Used In This Document APA - American Planning Association BFE - Base Flood Elevation BPAT - Building Performance Assessment Team CAC - Community Assistance Contact CAP - Community Assistance Program CAV - Community Assistance Visit CBRS - Coastal Barrier Resources System CFR - Code of Federal Regulations CRS - Community Rating System CTP - Cooperative Technical Partners DFIRM - Digital Flood Insurance Rate Map DMA - Disaster Mitigation Act of 2000 EMI - Emergency Management Institute E.O. - Executive Order FEMA - Federal Emergency Management Agency FIA - Federal Insurance Administration FIMA - Federal Insurance and Mitigation Administration FIRM - Flood Insurance Rate Map FIS - Flood Insurance Study FMA - Flood Mitigation Assistance program GSE - Government-Sponsored Enterprise HMGP - Hazard Mitigation Grant Program HUD - Housing and Urban Development (Department of) ICC - Increased Cost of Compliance LOMA - Letter of Map Amendment LOMR - Letter of Map Revision LOMR-F- Letter of Map Revision based on Fill NFIP - National Flood Insurance Fund NFIP - National Flood Insurance Program NFIRA - National Flood Insurance Reform Act OMB - Office of Management and Budget RCBAP - Residential Condominium Building Association Policy OPAs - Otherwise Protected Areas SFHA - Special Flood Hazard Area SFIP - Standard Flood Insurance Policy TB - Technical Bulletin WYO - Write-Your-Own

37 Texas Nonpoint Source Management Program

Texas Commission on Texas State Soil and Environmental Quality Water Conservation Board

SFR-068/04 December 2005 When your publication is complete, Agency Communications will put the page containing the agency logo, other agency information, and the ADA statement here. Texas Nonpoint Source Management Program

Prepared by the

Texas Commission on Environmental Quality and the Texas State Soil and Water Conservation Board

SFR-068/04 December 2005 Contents

Chapter 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Nine Elements of Texas’ NPS Management Program . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Major Issues Facing Water Quality in Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Chapter 2 Texas' Plan for Nonpoint Source Pollution Management . . . . . . . . . . . 9

The Nonpoint Source Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 State Priorities for CWA §319 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Resource Leveraging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Clean Water Act State Revolving Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Partnerships for Conducting Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Goals for NPS Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Long-Term Goal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Short-Term Goals and Milestones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Chapter 3 Texas’ Watershed Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A Watershed Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Managing Surface Water by Geographic Area . . . . . . . . . . . . . . . . . . . . . . . . . 18 The Water Quality Management Cycle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Standards and Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Assessment and Targeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Strategies for Protecting and Improving Water Quality . . . . . . . . . . . . . . . . . . 32 Implementing Plans to Restore Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . 35

A Joint Effort-Stakeholder Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Gauging Success . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Chapter 4 Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Interstate and International Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Interstate Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 International Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Environmental Protection Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 U.S. Geological Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

TCEQ/TSSWCB joint publication SFR-68/04 iii National Oceanic and Atmospheric Administration . . . . . . . . . . . . . . . . . . . . . 46 U.S. Army Corps of Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 U.S. Coast Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 U.S. Department of Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

State Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Texas State Soil and Water Conservation Board . . . . . . . . . . . . . . . . . . . . . . . . 48 Texas Commission on Environmental Quality . . . . . . . . . . . . . . . . . . . . . . . . . 48 Texas Water Development Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Texas Parks and Wildlife Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Texas Agricultural Experiment Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Texas Department of Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Texas Institute for Applied Environmental Research . . . . . . . . . . . . . . . . . . . . 50 Texas Water Resources Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Texas Forest Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Texas Cooperative Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Texas Department of Licensing and Regulation . . . . . . . . . . . . . . . . . . . . . . . . 51 Texas General Land Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Railroad Commission of Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Texas Department of Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Texas Department of State Health Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Interagency Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Stakeholder Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Coordinated Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Stakeholder Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 National Natural Resources Conservation Foundation . . . . . . . . . . . . . . . . . . . 55 Texas Forestry Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Clean Rivers Program Stakeholder Workgroup . . . . . . . . . . . . . . . . . . . . . . . . 55 Clean Rivers Program Basin Steering Committees . . . . . . . . . . . . . . . . . . . . . . 56 Local Watershed Action Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 NPS Stakeholders Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Texas Watershed Protection Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Texas Groundwater Protection Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Coastal Coordination Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Texas Alliance of Groundwater Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Soil and Water Conservation Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Importance of Local Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Chapter 5 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Surface Water Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Protecting Surface Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Assessing the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

iv TCEQ/TSSWCB joint publication SFR-68/04 Total Maximum Daily Loads (TMDLs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Monitoring the Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Groundwater Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Measuring Groundwater Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Aquifer Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Assessing the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Monitoring the Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Chapter 6 Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Surface Water Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 TMDL Implementation Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Watershed Protection Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Water Quality Trading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Groundwater Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Joint Groundwater Monitoring and Contamination Report . . . . . . . . . . . . . . . 89 Groundwater Protection Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Groundwater Conservation Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Remediation of Contaminated Sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Superfund Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Brownfields Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Voluntary Cleanup Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Corrective Action Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Leaking Petroleum Storage Tank Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Emergency Response and Disaster Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Floodplain Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Emergency Response Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Coastal Oil Spill Prevention and Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Kills and Spills Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Hydromodification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Clean Water Act § 401/404 Water Quality Certification . . . . . . . . . . . . . . . . . 98 Water Rights Permit Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Marinas and Recreational Boating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 The Clean Marina Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 The Clean Texas Marinas Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Solid and Hazardous Waste Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 State Solid Waste Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 The Beneficial Use Sludge Permitting Program . . . . . . . . . . . . . . . . . . . . . . . 103 The Illegal Disposal Abatement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Texas Environmental Enforcement Task Force . . . . . . . . . . . . . . . . . . . . . . . . 104

TCEQ/TSSWCB joint publication SFR-68/04 v Citizen Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Citizen Environmental Watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Composting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Used Oil Recycling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Oil and Gas Waste Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 The TCEQ Household Hazardous Waste Management Program . . . . . . . . . . 108 Tire Disposal Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 The City of San Antonio Waste Management Programs . . . . . . . . . . . . . . . . . 109 City of Austin Biosolids Composting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Wastewater Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 The On-Site Sewage Facility Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 The Texas On-Site Wastewater Treatment Research Council . . . . . . . . . . . . 111 The City of El Paso Reclaimed Water System . . . . . . . . . . . . . . . . . . . . . . . . 111 The Brazos River Authority Technical Assistance Program . . . . . . . . . . . . . . 112

Storm Water Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 State Storm Water Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Texas Department of Transportation Storm Water Management Guidelines . 114 The City of Dallas Trinity River Corridor Project . . . . . . . . . . . . . . . . . . . . . . 115 The San Antonio River Tunnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Integrated Storm Water Management Project . . . . . . . . . . . . . . . . . . . . . . . . 116 The San Angelo Urban Nonpoint Source Abatement Program . . . . . . . . . . . . 116

Pesticide Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Groundwater Pesticide Management Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Surface Water Pesticide Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Pesticide Review Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Agricultural Pesticide Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 The Structural Pest Control Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Agriculture Resource Protection Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 The Agricultural Waste Pesticide Collection Program . . . . . . . . . . . . . . . . . . 122

Agricultural Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Agricultural Waste Permitting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 TSSWCB Water Quality Management Plan Program . . . . . . . . . . . . . . . . . . . 124 The Dairy Outreach Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 The Texas Brush Control Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 The Agricultural Loan Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 The Private Lands Enhancement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 The Environmental Quality Incentives Program . . . . . . . . . . . . . . . . . . . . . . . 126 The Watershed Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Conservation Technical Assistance Program . . . . . . . . . . . . . . . . . . . . . . . . 127 Conservation Reserve Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 USDA-Agricultural Research Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 The Texas Institute for Applied Environmental Research . . . . . . . . . . . . . . . . 128 The Texas Water Resources Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 The Lower Colorado River Authority - Creekside Conservation Program . . . 129

vi TCEQ/TSSWCB joint publication SFR-68/04 Silvicultural Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 The Texas Forest Service Resource Development Program . . . . . . . . . . . . . . 130 The Forest Stewardship Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 The Forest Land Enhancement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Pollution Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 The Site Visit Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 The Small Towns Environment Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 The Texas Country Cleanup Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Supplemental Environmental Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 The Clean Texas Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Oil and Gas Waste Minimization Program . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Texas Chemical Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Protection for Drinking Water Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Underground Injection Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 The Source Water Assessment and Protection Program . . . . . . . . . . . . . . . . . 134

Aquifer Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 The Texas Groundwater Protection Committee . . . . . . . . . . . . . . . . . . . . . . . 136 Underground Storage Tank Installer Licensing Program . . . . . . . . . . . . . . . . 137 Texas Department of Licensing and Regulation . . . . . . . . . . . . . . . . . . . . . . . 137 Edwards Aquifer Protection Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Environmental Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 The Railroad Commission of Texas - Oil and Gas Well Plugging Program . . 141

Wetlands Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 The Wetlands Reserve Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 The Texas Wetlands Conservation Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Wetlands Planning Efforts in Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Wetlands Assistance for Landowners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Coastal Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 The Texas Coastal Management Program/Coastal Coordination Council . . . 145 The National Estuary Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Coastal Habitat Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 The BEACH Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 The Gulf of Mexico Community-Based Restoration Program . . . . . . . . . . . . 149 The Bilge Water Reclamation Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Coastal Texas 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 The Adopt-A-Beach Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Border Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 The TCEQ Border Pollution Prevention Initiative . . . . . . . . . . . . . . . . . . . . . 151 The Border Environment Infrastructure Fund . . . . . . . . . . . . . . . . . . . . . . . . 152 The International Boundary and Water Commission . . . . . . . . . . . . . . . . . . . 152 The Economically Distressed Areas Program . . . . . . . . . . . . . . . . . . . . . . . . . 153

TCEQ/TSSWCB joint publication SFR-68/04 vii The Colonias Initiatives Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Border Recycles Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Friends of the Rio Grande . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

Chapter 7 Educational Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Education Through Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Texas Watch Volunteer Environmental Monitoring & Education Program . . 155 The Lower Colorado River Authority - Colorado River Watch Program . . . . 156 The Aquatic Experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 The City of Denton Watershed Protection Program . . . . . . . . . . . . . . . . . . . . 157

Education Through Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Nonpoint Source Consumer Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Storm Drain Marking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Back Yard Composting and Xeriscaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Teaching Environmental Sciences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Environmental News You Can Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Publications and Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Environmental Information Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Small Spill Prevention Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 The Texas Cooperative Extension Agricultural Outreach Program . . . . . . . . 160 The Texas A & M University On-Site Wastewater Treatment Training Center161 Don't Mess With Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Keep Texas Beautiful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 The Texas Wildscapes Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 The Edwards Aquifer Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 The Barton Springs/Edwards Aquifer Conservation District . . . . . . . . . . . . . 164 The City of Austin's "Grow Green" and "Earth Camp" . . . . . . . . . . . . . . . . . . 164 The City of Houston's WET in the City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 The City of Fort Worth Environmental Education Programs . . . . . . . . . . . . . 166 The City of San Antonio's Curbside Recycling Program . . . . . . . . . . . . . . . . 167

Chapter 8 Best Management Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Definition of Best Management Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Categories of Nonpoint Source Pollution Management . . . . . . . . . . . . . . . . . . . . . . . 168

Categories of Nonpoint Sources and Associated Pollutants . . . . . . . . . . . . . . . . . . . . 171 Major Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Special Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Appendix A Certification of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

TCEQ-General Counsel’s Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

TSSWCB-Attorney General’s Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

viii TCEQ/TSSWCB joint publication SFR-68/04 Appendix B Priority Water Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Surface Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

Appendix C Overview of Current Priority Watersheds, Impairments, Milestones, and Estimated Timelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

Appendix D Aquifer Vulnerability Ranking System . . . . . . . . . . . . . . . . . . . . . . . 253

Appendix E The History of Nonpoint Source Management . . . . . . . . . . . . . . . . . 256

Clean Water Act of 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 National Urban Runoff Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 National Pollutant Discharge Elimination System . . . . . . . . . . . . . . . . . . . . . 257 Rural Clean Water Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Clean Water Action Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 Total Maximum Daily Load Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 National Estuary Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

Other Federal Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 Coastal Zone Nonpoint Source Management . . . . . . . . . . . . . . . . . . . . . . . . . 261 Safe Drinking Water Act: Source Water Protection . . . . . . . . . . . . . . . . . . . . 263 Intermodal Surface Transportation Efficiency Act . . . . . . . . . . . . . . . . . . . . . 263 The Food Security Act of 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Federal Agriculture Improvement and Reform Act of 1996 . . . . . . . . . . . . . . 264 Farm Security and Rural Investment Act of 2002 . . . . . . . . . . . . . . . . . . . . . . 264

State of Texas Nonpoint Source Control Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 General Discharge Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Texas Local Government Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Municipal Pollution Abatement Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Livestock and Poultry Production Operations . . . . . . . . . . . . . . . . . . . . . . . . . 265 Edwards Aquifer Protection Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 On-Site Sewage Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 Soil Conservation Laws and Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Water Quality Management Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

Appendix F Clean Water Act, § 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

Appendix G Federal Consistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279

TCEQ Review of Federal Assistance Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Department of Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Department of Housing and Urban Development . . . . . . . . . . . . . . . . . . . . . . 280

TCEQ/TSSWCB joint publication SFR-68/04 ix Department of the Interior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Department of Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 General Services Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Small Business Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Environmental Protection Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Department of Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 TCEQ Review of Federal Development Projects . . . . . . . . . . . . . . . . . . . . . . 283 USDA, Forest Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 USDA, Natural Resources Conservation Service/Farm Service Agency . . . . 284 Department of the Interior, Bureau of Land Management . . . . . . . . . . . . . . . 284 Department of the Interior, Bureau of Reclamation . . . . . . . . . . . . . . . . . . . . 285 Department of the Interior, Fish and Wildlife Service . . . . . . . . . . . . . . . . . . 285 Department of the Interior, Surface Mining . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Department of Defense, Defense Installations . . . . . . . . . . . . . . . . . . . . . . . . 285 Department of Defense, Corps of Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Department of Transportation, Federal Aviation Administration . . . . . . . . . . 286 Department of Transportation, U.S. Coast Guard . . . . . . . . . . . . . . . . . . . . . . 286 General Services Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

Appendix H Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Specific Funding for TCEQ Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Funding Sources for Agricultural & Silvicultural Nonpoint Source Pollution Abatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

Appendix I Summary of Public Responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

Appendix J Acronyms and Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293

Appendix K Web Sites of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Bay and Estuary Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Council of Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

Groundwater Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

Industrial Councils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Interstate and International Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298

x TCEQ/TSSWCB joint publication SFR-68/04 River Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298

State Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

TABLES AND FIGURES Figure 3.1 Major River Basins and Planning Areas in Texas . . . . . . . . . . . . . . . . . . . . 20 Figure 3.2 The Water Quality Management Cycle of the Watershed Approach . . . . . 21 Figure 3.3 Stakeholder Forums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Table 1.1 Nonpoint Source Pollution: Sources and Activities . . . . . . . . . . . . . . . . . . . 7

Table 2.1 The Nonpoint Source Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Table 3.1 Categories of Use Attainment in the Water Quality Inventory . . . . . . . . . . 29 Table 3.2 Criteria for Prioritizing TMDLs (Category 5A waters) for Development . 31

Table 4.1 Federal, State, and Local Agreements to Facilitate Cooperation on NPS Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Table 4.2 Federal, State, and Local Programs and Activities for Assessment, Implementation, and Education within the Texas Nonpoint Source Pollution Management Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Table 5.1 Categories of the Texas Water Quality Inventory and 303(d) List . . . . . . . . 74 Table 5.2 TGPC Groundwater Classification System . . . . . . . . . . . . . . . . . . . . . . . . . 81

Table 6.1 Texas Coastal NPS Management Program. Remaining Conditions and Anticipated Year of Condition Resolution . . . . . . . . . . . . . . . . . . . . . . . . 146

Table 8.1 Best Management Practices by Category . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Table 8.2 Best Management Practices by Source . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

Table B.1 Priority Water Bodies - Surface Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Table B.2 Priority Water Bodies - Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

Table C.1 Milestone Summary Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Table C.2 Individual Priority Waterbody Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

Table D.1 Aquifer Vulnerability Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

TCEQ/TSSWCB joint publication SFR-68/04 xi CHAPTER 1 INTRODUCTION Water quality is degraded when storm water runoff carries NPS pollution is caused by rainfall or snowmelt moving over and through the pollutants such as motor oil ground. As the water moves over, or from automobiles, fertilizers through, the ground, it picks up and carries from landscapes or farms, and away natural and human-made pollutants, sediments from construction eventually depositing them into lakes, rivers, sites into downstream creeks, wetlands, coastal waters, and groundwater. These pollutants include: rivers, lakes, aquifers, and • excess fertilizers, herbicides, and estuaries. This is nonpoint insecticides from agricultural lands and source (NPS) water pollution. residential areas; Decisions made today about • oil, grease, and toxic chemicals from how to manage nonpoint urban runoff and energy production; sources of pollution determine • sediment from improperly managed construction sites, crop and forest lands, the quantity and quality of and eroding streambanks; water resources for future • salt from irrigation practices, petroleum generations. A dynamic and production, acid drainage from effective nonpoint source abandoned mines, and natural salt deposits; program, implemented now, • bacteria and nutrients from livestock, that focuses on planning, good pet wastes, faulty septic systems, and science, and fiscal wildlife; responsibility will save future • atmospheric deposition and generations the expense of hydromodification. cleaning up what we leave behind and provide good- quality water for the use and enjoyment of all Texans.

This report outlines Texas' comprehensive management strategy to protect and restore water impacted by nonpoint sources of pollution and is jointly developed by the Texas Commission on Environmental Quality (TCEQ) and the Texas State Soil and Water Conservation Board (TSSWCB). NPS management is a collaborative effort and the responsibility of all programs described in this document. This document represents a toolbox for the state to manage NPS pollution by listing the programs and processes throughout the state that address NPS pollution. This plan provides for the coordination of NPS related activities, establishment of statewide goals, prioritization of assessment and implementation activities, and elimination of duplication of effort among participating stakeholders.

Nine Elements of Texas’ NPS Management Program As prescribed by current Nonpoint Source EPA guidelines, Texas’ program incorporates EPA’s nine key elements of an effective program, which allow for maximum flexibility in managing NPS pollution. These elements are listed below, with a summary of how the state has addressed them in its program. Many specific examples of the state’s application of the nine key elements may be found throughout this document in the

TCEQ/TSSWCB joint publication SFR-68/04 1 descriptions of various state programs and their management strategies for NPS pollution.

Element 1 Explicit short- and long-term goals, objectives and strategies that protect surface and groundwater.

The section “Goals for NPS Management”, as described in Chapter 2, details TSSWCB and TCEQ long and short term goals of the Nonpoint Source Program. Many individual programs have also established long and short term goals that are compatible with these goals.

Element 2 Working partnerships and linkages to appropriate state, interstate, tribal, regional, and local entities, private sector groups, and Federal agencies.

Surface water and aquifers are not limited by political boundaries and, as a result, environmental solutions often cross federal, state, and local levels of responsibility. With the extent and variety of water quality issues across Texas, the need for cooperation at all levels is essential.

The state coordinates, develops, and implements the NPS program by using the existing infrastructure of the Clean Rivers Program (CRP), Soil and Water Conservation Districts (SWCDs), Texas Groundwater Protection Committee (TGPC), and the University System in order to leverage the efforts of state, federal, regional, and local entities. Through this infrastructure, the state establishes working partnerships for obtaining consensus and input on NPS issues. TCEQ and TSSWCB programs use the statewide Watershed Approach, as described in Chapter 3, to organize the participation of all stakeholders to:

! identify priority watersheds with NPS water quality problems; ! formulate the steps necessary to alleviate any known water quality problems within those watersheds; and ! secure and target resources in order to develop and implement NPS strategies that restore water quality.

A description of various agencies and stakeholder programs, along with coordination of roles and table of MOAs / MOUs between the partners, can be found in Chapter 4.

Element 3 Balanced approach that emphasizes both state-wide nonpoint source programs and on-the-ground management of individual watersheds.

Activities in Texas that address NPS pollution involve both statewide strategies and local initiatives. NPS activities are managed with a

2 TCEQ/TSSWCB joint publication SFR-68/04 geographical focus where work is directed at the level in which it can be most effective. For example, one of the Texas’ primary statewide efforts is public outreach and education, which is accomplished through activities of the TCEQ and TSSWCB Nonpoint Source Programs. The TSSWCB educates producers throughout the state on how their activities may contribute to NPS pollution, measures they can take to minimize their impacts, and money that is available to help them implement these measures. This is accomplished through state-wide conferences, news articles, and educational brochures. The TCEQ has numerous programs throughout the agency that play significant roles in the area of statewide public education. In addition to statewide public outreach and education efforts, the Texas Clean Rivers Program and local Soil and Water Conservation Districts provide the framework for public outreach on a local watershed level. Other nonpoint source state, regional, and local management efforts are described in detail throughout this Management Program document.

Element 4 Abatement of water quality impairments from nonpoint source pollution and prevention of significant threats to water quality from present and future nonpoint source activities.

The TCEQ and TSSWCB Nonpoint Source Programs use a Watershed Approach to focus on the most significant NPS water quality problems. The Texas Water Quality Inventory and 303(d) list and category structure provide a basis for prioritizing assessment, implementation, and education projects to address water quality impairments from existing sources. In selecting projects for funding, the TCEQ and the TSSWCB give the highest consideration to projects which address the most significant threats to water quality and have the best potential to prevent or reduce nonpoint sources of pollution and improve water quality.

Many TSSWCB and TCEQ programs are preventive in nature or incorporate pollution prevention activities. Texas also uses regulatory approaches to prevent pollution. The TCEQ, TSSWCB, and other state programs that carry out nonpoint source management activities are described in Chapter 6.

Element 5 The state program identifies waters and their watersheds impaired by nonpoint source pollution and identifies important unimpaired waters that are threatened or otherwise at risk. Further, the state establishes a process to progressively address these identified waters by conducting more detailed watershed assessments and developing watershed implementation plans, and then by implementing the plans.

Texas routinely assesses and monitors water quality under programs administered by the TCEQ. These data are collected by federal, state, regional, and local agencies and are compiled into the Clean Water Act

TCEQ/TSSWCB joint publication SFR-68/04 3 §305(b) Report and §303(d) List (otherwise known as the Texas Water Quality Inventory and 303(d) list). The Texas Water Quality Inventory categorizes water bodies impaired by nonpoint source pollution, according to their status, and sets forth the method by which the state will approach identified nonpoint source problems. CWA§303(d)-listed water bodies are further categorized to determine the priorities for doing further water quality assessments or implementing restoration activities. This strategy is described in Chapter 3 under TCEQ’s Watershed Approach.

The management strategies detailed in the Watershed Approach lay out the processes that the TCEQ will use to progressively address impaired or threatened water bodies. The TSSWCB works closely with the TCEQ in each water body impaired by agricultural or silvicultural activities to perform additional targeted water quality assessments. The TSSWCB leads the development of TMDLs, implementation plans, and watershed protection plans for water bodies primarily impacted by agricultural or silvicultural sources, and will implement practices in those watersheds to mitigate the water quality problems. The TCEQ leads the development of TMDLs, implementations plans and watershed protection plans in areas affected by all other nonpoint sources.

Element 6 The state reviews, upgrades, and implements all program components required by §319(b) of the Clean Water Act, and establishes flexible, targeted, and iterative approaches to achieve and maintain beneficial uses of water as expeditiously as practicable. The state programs include:

! A mix of water quality-based and/or technology-based programs designed to achieve and maintain beneficial uses of water; and ! A mix of regulatory, non-regulatory, financial, and technical assistance as needed to achieve and maintain beneficial uses of water as expeditiously as practicable.

The state’s Watershed Approach is based on a water quality management cycle which has five phases that are iterative in nature as described in Chapter 3. If water bodies are identified during the Assessment and Targeting phase as being impaired, the state considers a variety of approaches to implement solutions.

Since the state does not have statutory authority to enact certain types of NPS regulatory measures, it must work cooperatively with local authorities to implement solutions. As noted in Key Element 2, annual meetings with the CRP partners and stakeholders are used to coordinate data collection on a regional level. CRP partners assist the state with the development of strategies for restoring water quality and are actively involved in implementation solutions.

4 TCEQ/TSSWCB joint publication SFR-68/04 Development of a TMDL or a watershed protection plan (WPP) are the first steps of an effective NPS implementation program. The TMDL is the scientific basis for the second step, which is the formulation of an implementation plan to restore water quality. Where a NPS TMDL has not yet been developed and approved or is not yet being developed for an impaired water body, a WPP may be developed in the absence of the TMDL. The successful implementation of these protection plans will largely be dependent on the early participation and involvement of stakeholders in the watershed. Participation and involvement of a large number of local stakeholders are critical to developing accurate and comprehensive data for each plan. Early stakeholder participation and buy-in also provides the best possible setting for implementing subsequent management strategies called for in the action plans. Chapters 5, 6, and 7 describe established implementation strategies and activities, regional and local programs and best management practices that the state and regional agencies use.

Element 7 The state identifies federal lands and activities which are not managed consistently with state nonpoint source program objectives. Where appropriate, the state seeks EPA assistance to help resolve issues.

As described in Chapter 4, the state has established formal agreements with key state and federal agencies to enhance the state’s ability to provide a coordinated response to needs identified in priority watersheds.

Element 8 The state manages and implements its nonpoint source program efficiently and effectively, including necessary financial management.

The state takes its fiduciary responsibilities, related to the management of public funds, very seriously. The TSSWCB and TCEQ have established operating procedures and tracking systems to ensure the effective use of CWA §319 grant funds for addressing identified water quality problems. Both agencies conduct training at the beginning of all projects, with all contractors, to review what will be required of them throughout the course of the project. Agency staff maintain close contact with project managers and provide oversite throughout the course of each project, provide review of all invoices, and stay in continuous contact with the EPA project officer regarding the status of the program. In order to enhance the efficiency and effectiveness of grant management as well as strengthen policies and procedures that govern the contracting process, both agencies continually review and update contractor performance criteria, invoice review criteria, contract manager qualification criteria, and contract shells.

Element 9 The state periodically reviews and evaluates its nonpoint source management program using environmental and functional measures of

TCEQ/TSSWCB joint publication SFR-68/04 5 success, and revises its nonpoint source assessment and its management program at least every five years.

The TCEQ and TSSWCB are committed to thoroughly updating the state’s Nonpoint Source Management Program every five years. TSSWCB and TCEQ Nonpoint Source Program staff will produce and review the management program and provide annual updates to the management program as necessary to reflect any new activities planned through the watershed approach. These updates will serve as the basis for work plans with specific targeted output measures that can be reviewed for success at the end of the year.

Major Issues Facing Water Quality in Texas In response to a favorable climate, adequate water, and a strong economy, Texas’ population has shown robust growth since 1900. The forecast is for continued moderate growth, with the population nearly doubling to 36,671,000 residents by 2050. Currently, agricultural irrigation accounts for the largest percentage of water use, but as the population continues to grow, combined water use by municipalities and industries is projected to surpass agricultural usage.

Physical changes in the environmental landscape can greatly increase the amount and effects of NPS pollution. For example, urban growth typically results in dramatic increases in the amount of land covered by impervious surfaces, such as buildings, roadways, and parking lots. An EPA report on coastal NPS pollution (EPA, 1993) identifies many impacts from impervious cover. These changes can result in higher runoff volumes, increased pollutant loadings, a greater potential for downstream flooding, erosion of stream channels, reduced base flows, and reduced groundwater infiltration. Urban development also results in modifications to natural drainage systems. The loss of wetlands, riparian areas, and stream buffers reduces the environment’s natural ability to absorb storm flows and to filter contaminants before they reach nearby water bodies.

Effective state and local management and oversight of decentralized wastewater treatment systems are crucial to correcting and avoiding NPS problems in many developing areas where On-Site Sewage Facilities (OSSFs), or septic tanks, may be the most cost effective option available. About 25 percent of the population in the United States depend upon decentralized wastewater treatment systems or OSSFs, and these systems are expected to be used in almost 40 percent of new development, primarily in low-density urban and suburban areas. Results of a survey by the Texas On-Site Wastewater Treatment Research Council in 2000 indicated that 13 percent of OSSFs in Texas were malfunctioning. Improved operation and performance of on-site or decentralized systems are essential to NPS management.

6 TCEQ/TSSWCB joint publication SFR-68/04 Possible nonpoint source pollutants associated with agricultural and silvicultural activities include sediment, nutrients, pesticides, organic matter, and bacteria. Sediment, resulting from erosion from cropland, pastureland, rangeland, forest lands and stream banks, fills up ponds and drainage ditches, chokes streams, and fills in estuaries. Sediment can also carry fertilizers and pesticides to surface waters. Excess nutrients and pesticides can also be carried in solution by runoff into surface waters and can seep into groundwater. Nutrients, pesticides, and other pollutants can come from a variety of sources including over-fertilized fields, runoff from improperly managed animal operations and waste applications, inaccurate pesticide sprayer settings, and dozens of other sources. Chapter 6 discusses, in greater detail, the problems the state faces with regards to NPS pollution and some of the programs in place to address the issue. The table below lists some of the sources and activities that contribute to NPS pollution.

Table 1.1 Nonpoint Source Pollution: Sources and Activities

Urban/Suburban Development Industrial/Commercial Operations Agricultural Operations

Impervious Cover Impervious Cover Pesticides-crops

Storm Water Runoff Storm Water Runoff Fertilizers-crops

Construction Materials Storage/Handling Concentrated Animal Feeding Operations (CAFO)

Roadways and Vehicle Use Leaks/Spills

Pesticides: lawns/gardens Waste Management Silviculture

Fertilizers: lawns/gardens Air Deposition Irrigation

Septic Systems Oil Field Brine Discharges Wetland and Riparian Loss

Stream Channelization Wetland and Riparian Loss

Wetland and Riparian Loss Stream/Estuary Modification

Illegal Dumping

Despite the abundance of water available in Texas, it is not uniformly distributed around the State. During recent periods of drought, surface water and groundwater supplies have been nearly depleted in some localized areas. Surface and groundwater supplies have already limited growth and agricultural production in some areas of the state. As the Texas population has continued to grow at a rapid pace, the need to conserve, protect, and restore surface water and groundwater supplies has never been more paramount.

The future success of reducing NPS pollution impacts will depend upon a coordinated effort of state and local officials, planners, developers, and

TCEQ/TSSWCB joint publication SFR-68/04 7 citizens. Technical assistance and outreach to local and regional governments is an integral component of urban NPS implementation efforts. Land use management decisions are best made in the local arena where buy-in by the affected parties is crucial to success. Government planners and zoning authorities around the United States are beginning to tie together the disciplines of urban planning with the need for water conservation, NPS pollution abatement and water quality improvement.

Other challenges to NPS pollution management in Texas are low public awareness of the issues, the size and complexity of the problem, the lack of rigorous scientific definition of NPS problems, institutional barriers to directing multiple sources of funding to a single problem, and availability or lack of awareness of funding sources other than CWA§319(h) grants to address the problems or conduct assessment activities. In addition, it is difficult, and in some cases impossible, to measure NPS pollution or to quantify in-stream load reductions due to NPS implementation activities.

Because of its diffuse nature, NPS pollution is more difficult and costly to characterize and control than point source pollution. The amount and variety of precipitation, land use, and geography all determine the effects from nonpoint source pollution. The lack of a single identifiable source of pollution sometimes makes it difficult to establish specific cause-and-effect relationships. In addition, there is a problem of cumulative impacts resulting from what may be very small problems at an individual source.

8 TCEQ/TSSWCB joint publication SFR-68/04 CHAPTER 2 TEXAS' PLAN FOR NONPOINT SOURCE POLLUTION MANAGEMENT

THE NONPOINT SOURCE PROGRAM Because they cannot be easily distinguished, nonpoint sources of pollution are largely unregulated and a majority of the activities designed to reduce their impact on water quality falls on the states' Nonpoint Source Programs administered under CWA§319. Texas addresses the requirements of CWA§319, to manage nonpoint source pollution in surface and ground water, through the Nonpoint Source Program jointly administered by the TCEQ and the TSSWCB. The TSSWCB administers the Nonpoint Source Program for agricultural and silvicultural NPS management and the TCEQ administers the Nonpoint Source Program for all other nonpoint sources. The CWA§319 Nonpoint Source Program consists of three broad components as defined by §319(a), §319(b) and §319(h). Table 2.1, below, lists those requirements.

Table 2.1 The Nonpoint Source Program

Assessment Report Management Grant Program CWA §319(a) Program CWA §319(h) CWA §319(b) Identifies water bodies Identifies the BMPs and Outlines application requirements, impacted by nonpoint sources measures to reduce pollutant including an identification and that do not meet water quality loadings from nonpoint sources. description of the best management standards practices and measures

Identifies categories of Identifies programs* to achieve Identifies how grant funds will be nonpoint sources which add implementation of the BMPs allocated significant pollution to impacted water bodies

Describes the process for Includes a schedule with Identifies priorities for grant funds identifying best management milestones for utilization of the practices and measures to program* implementation control nonpoint sources methods and implementation of the BMPs

Identifies and describes State Identifies sources of federal and States the requirement for annual and local programs for other assistance and funding and reporting to the EPA regarding progress controlling pollution added purposes for which it will be toward milestones and as appropriate, from nonpoint sources used reductions in loadings and improvements in water quality

*Programs may include: nonregulatory or regulatory programs for enforcement, technical assistance, financial assistance, education, training, technology transfer, and demonstration projects.

TCEQ/TSSWCB joint publication SFR-68/04 9 State Priorities for CWA § 319 Funding One of the tools to assist states in NPS management is the CWA§319 Nonpoint Source grant. Funding is provided to states under CWA§319(h), defined in the above chart, to implement its Nonpoint Source Management Program. Due to a lack of adequate resources, Texas must establish priorities for its CWA§319 grant funding. Highest priority is given to funding those projects or activities which address water bodies not meeting water quality standards due to NPS pollution, as identified in the Texas CWA§303(d) List of impaired water bodies. To ensure fiscal responsibility and adequately focus limited resources, the state’s Nonpoint Source Program uses the Texas Water Quality Inventory and 303(d) List process to establish its priorities (see Chapter 5). Appendices B and C represent a listing of the state’s priority water bodies based on the 2002 Texas Water Quality Inventory and 303(d) List. This list will change as the Texas Water Quality Inventory and 303(d) List is updated.

In addition, Texas will adopt TMDLs in impaired waterbodies identified as impacted by nonpoint source pollution in the state's CWA§305(b) assessment. The state will facilitate 100 percent of the state-approved Implementation Plans developed for NPS TMDLs adopted to eliminate significant impacts to water quality from present and future activities to the extent practicable under state and federal statutes, programs, and resources. Texas will also implement Watershed Protection Plans to address NPS water quality issues which, may not have a TMDL Implementation Plan to the extent practicable under state statutes, programs, and resources. The state will continue to conduct activities to prevent the degradation of water quality. The state will also facilitate implementation of activities to restore and protect groundwater quality where feasible.

The TCEQ and TSSWCB encourage the participation of all eligible grant recipients in the CWA §319(h) grant program. Local participation in the program provides the following benefits: improves the quality and quantity of information used to identify and develop water quality restoration activities, ensures a local perspective in decision making, helps stakeholders gain insight into the nature of water quality problems and solutions, and promotes local stewardship of water resources through voluntary actions to curb or prevent nonpoint source pollution.

Resource Leveraging The majority of the State of Texas' annual CWA §319 grant allocation is "passed through" to political subdivisions by the TCEQ and TSSWCB through the execution of interagency or interlocal contracts. CWA§319(h) contractors are considered sub-recipients and, as such, are subject to all applicable federal regulations and statutes.

10 TCEQ/TSSWCB joint publication SFR-68/04 For the State's NPS Program to be effective on both a statewide and watershed level, the TCEQ and TSSWCB must work closely with other state, regional, and local organizations to implement management measures and optimize the use of all available resources. The magnitude of resources needed to restore beneficial uses and address nonpoint sources of pollution is much larger than the amount of funding available from the CWA§319(h) grant program. Therefore, the State of Texas NPS Program encourages the use of leveraged resources when feasible.

Federal Match Requirement The Nonpoint Source Grant Program requires that federal funds be matched forty percent (40%) with non-federal funds. "Match" refers to funds or services used to conduct a project that are not borne by grant funds. All project match must: (1) relate directly to the project for which the match is being applied; (2) be reasonably valued; and (3) be supported by documentation. The cost share does not have to originate with the grant recipient but can come from individuals, outside organizations, other local governments, or state agencies as long as the source of the matching funds is non-federal and is not being used to match another federal grant program.

Matching or cost share can be financed in several ways:

Cash These are costs that relate directly to the project for which the match is being applied and which are paid by the grant recipient. This is the most common method of fulfilling the federal match requirement.

In-Kind Services In-kind services are typically defined as a donation separate from the grantee which has a cash value associated with it but may not require a cash outlay during the grant period. In-kind contributions may consist of the donation of real property, space and equipment, or a donation of time or services directly benefitting the grant project and specifically identifiable with it. The use of "third-party" or "in-kind" donations to meet grant matching requirements is regulated in 40 CFR 30.307, 40 CFR 31.24 (6) and (7) and is also covered in OMB Circular A. Third party in-kind contributions may be necessary to accomplish program activities and are allowable under applicable cost principles if the grantee was required to pay for them.

Clean Water Act State Revolving Fund Another funding tool available to Texas for NPS management is the Clean Water Act State Revolving Fund (CWSRF). The Texas Water Development Board (TWDB) can provide loans for NPS pollution abatement projects through the CWSRF at interest rates lower than the market offers. Loans can be made to towns, counties, conservation

TCEQ/TSSWCB joint publication SFR-68/04 11 districts, and other public agencies, as well as private individuals and non- profit organizations. A water quality based priority system is used to rank potential applicants and fund projects with the greatest environmental benefits. Some of the activities that are eligible for funding include agricultural, rural, and urban runoff control, estuary improvement, nonpoint source education, wet weather flow control including stormwater and sewer overflows that are not associated with a Texas Pollutant Discharge Elimination System (TPDES) permit. Repayments on CWSRF loans provided from non-federal sources can be used as eligible match to CWA §319(h) grant funds.

Partnerships for Conducting Work The State primarily uses the infrastructure of the Clean Rivers Program (CRP), Soil and Water Conservation Districts (SWCDs), Texas Groundwater Protection Committee (TGPC), and the University System to coordinate, develop, and implement its NPS Program. These entities are each charged with certain water quality stewardship responsibilities and can bring a great deal of experience related to research, assessment, laboratory analysis, and implementation and education activities. In addition, these entities conduct meetings and coordinate activities with a variety of local, regional, and state level stakeholders to pursue effective solutions to reduce or prevent nonpoint source pollution.

A group, consisting of nonpoint source stakeholders, was established to assist in the preparation and review of the Texas Nonpoint Source Pollution Management Program. This stakeholder group was established to ensure involvement by local public and private agencies and organizations which have expertise in control of nonpoint sources of pollution.

Goals for NPS Management The state's management program for nonpoint source pollution utilizes baseline water quality management programs and regulatory, non-regulatory, financial, and technical assistance approaches to achieve a balanced NPS management program. Nonpoint source pollution is managed through assessment, implementation, and education. The TCEQ and TSSWCB have established long and short-term goals and objectives for NPS management for guiding and tracking the progress of NPS management in Texas. The goals describe high-level guiding principles for all activities under the Program. The objectives specify the key methods that will be used to accomplish the goals. Success in achieving the goals and objectives are reported annually in the State’s NPS Annual Report, which is submitted to EPA in accordance with CWA§319(h)(11). This report is also available by contacting the TCEQ or TSSWCB or visiting their Web sites.

12 TCEQ/TSSWCB joint publication SFR-68/04 Long-Term Goal The long-term goal of the State of Texas nonpoint source pollution program is to protect and restore water quality from nonpoint source pollution through assessment, implementation, and education.

Objectives # Focus NPS abatement efforts, implementation strategies, and available resources in watersheds identified as impacted by nonpoint source pollution. # Support the implementation of state, regional, and local programs to prevent nonpoint source pollution through assessment, implementation, and education. # Support the implementation of state, regional, and local programs to reduce NPS pollution, such as the implementation of strategies defined in state-approved TMDL Implementation Plans and Watershed Protection Plans. # Support the implementation of state, regional, and local programs to reduce NPS pollution to groundwater through the Groundwater Protection Strategy, based on the potential for degradation with respect to use. # Develop partnerships, relationships, memoranda of agreement, and other instruments to facilitate collective, cooperative approaches to manage NPS pollution. # Increase overall public awareness of NPS issues and prevention activities. # Enhance public participation and outreach by providing forums for citizens and industry to contribute their ideas and concerns about the water quality management process.

Short-Term Goals and Milestones

Goal One - Data Collection and Assessment Coordinate with appropriate federal, state, regional, and local entities, private sector groups, and citizen groups and target CWA §319(h)grant funds towards water quality assessment activities in high priority, nonpoint source-impacted watersheds, vulnerable and impacted aquifers, or areas where additional information is needed.

Objectives Evaluate the condition of the State’s water bodies, on a biennial basis, and prepare a report containing this evaluation, as required by CWA§305(b) to determine: a) water bodies not meeting water quality standards due, at least in part, to nonpoint source pollution, and; b) the cause of the impairment.

TCEQ/TSSWCB joint publication SFR-68/04 13 ! Identify surface waterbodies and aquifers from the Texas Water Quality Inventory and 303(d) List and Joint Groundwater Report that need additional information to characterize non-attainment of designated uses and quality standards. This information is used during annual coordinated monitoring meetings and during special project planning to focus on high priority waters. ! Ensure that monitoring procedures meet quality assurance requirements and are in compliance with EPA-approved TCEQ and/or TSSWCB Quality Management Plans. ! Conduct special studies to determine sources of NPS pollution and gain information to target TMDL activities and BMP implementation. ! Develop and adopt, at the state level, TMDLs, Implementation Plans and Watershed Protection Plans to maintain and restore water quality in waterbodies identified as impacted by NPS pollution. ! Conduct monitoring to determine effectiveness of TMDL Implementation Plans, Watershed Protection Plans, and BMP implementation as appropriate.

Goal Two - Implementation Coordinate and administer the NPS program to support the implementation of TMDL Implementation Plans and/or Watershed Protection Plans and other state, regional, and local plans/programs to reduce NPS pollution. Manage all CWA§319 grant funds efficiently and effectively to target implementation activities to the areas identified as impacted, or potentially degraded with respect to use by NPS pollution.

Objectives Prevent and reduce NPS pollutant loadings in the surface water bodies, groundwater aquifers, wetlands, and coastal areas, through the execution of TMDL implementation Plans, Watershed Protection Plans, recommendations from the Joint Groundwater Monitoring and Contamination Report, the Groundwater Protection Strategy, and various agricultural / silvicultural activities.

! Work with regional and local entities to determine priority areas and develop and implement strategies to address NPS pollution in those areas. ! Develop and implement BMPs to address constituents of concern or water bodies not meeting water quality standards in watersheds identified as impacted by NPS pollution. ! Develop and implement BMPs to address NPS constituents of concern or water bodies not meeting water

14 TCEQ/TSSWCB joint publication SFR-68/04 quality standards in aquifers identified with impacts or as vulnerable in the latest state approved Texas Water Quality Inventory and 303(d) List or in Chapter 5 of this document. ! Implement state-approved TMDL Implementation Plans and Watershed Protection Plans developed to restore and maintain water quality in water bodies identified as impacted by nonpoint source pollution.

Goal Three - Education Conduct education and technology transfer activities to help increase awareness of NPS pollution and prevent activities contributing to the degradation of water bodies, including aquifers, by NPS pollution.

Objectives Reduce the amount of NPS pollution entering the water bodies of Texas through pollution prevention activities and education.

! Enhance existing outreach programs at the state, regional, and local levels to maximize the effectiveness of NPS education. ! Administer programs to educate citizens about water quality and their potential role in causing NPS pollution. ! Where applicable, expedite development of technology transfer activities to be conducted upon completion of BMP implementation. ! Conduct outreach through the Clean Rivers Program, Texas Cooperative Extension, Soil and Water Conservation Districts, and others to facilitate broader participation and partnerships. Enable stakeholders and the public to participate in decision-making and provide a more complete understanding of water quality issues and how they relate to each citizen. ! Implement outreach activities identified in the Texas Groundwater Protection Strategy to prevent NPS impacts to groundwater. ! Implement public outreach and education to maintain and restore water quality in waterbodies impacted by NPS pollution.

The long-term goal will remain the goal of NPS management as long as nonpoint source water pollution is an issue. Short- term goals will be examined every five years. Measurement of the goal achievement progress, within the priority water bodies, will be reported on an annual basis in the State's NPS Annual Report. The TCEQ and the TSSWCB will evaluate the management program, on an annual basis, to determine a need for revision and revise the document at least every five years.

TCEQ/TSSWCB joint publication SFR-68/04 15 Milestones Water bodies with completed TMDLs, those undergoing current TMDL- work, and water bodies currently implementing Watershed Protection Plans have been listed in Appendix C, in table format, in order to gauge progress, through a time line, against the detailed milestones that are included below and in the first column of each table within the appendix.

# Employ or develop a local Watershed Committee to solicit input and encourage the participation of affected stakeholders in the decision-making process. # Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality. # Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and distribution of pollutants. # Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation. # Develop a detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocation, strategy for load allocation, timetable for implementation, and a list of expected results. # Implement voluntary and regulatory actions in the watershed and adust the BMP implementation based on follow-up verification monitoring of effectiveness.

The programs discussed throughout this document are responsible for NPS management and implementation of the goals, objectives, and milestones. Nonpoint source management must be a coordinated effort to be successful. Therefore, the goals and milestones are over-arching for all nonpoint source programs of Texas.

16 TCEQ/TSSWCB joint publication SFR-68/04 CHAPTER 3 TEXAS' WATERSHED APPROACH The watershed approach described in this chapter provides an overview of Texas’ management strategy for surface water quality. Some of the topics in this chapter are covered in more detail in other parts of this document.

In order to protect water quality, we must define and measure it, identify the types and sources of pollution, and implement plans to protect or restore it. Under the federal Clean Water Act, Texas and other states must establish standards that describe how the water bodies are used, and carry out a program to regularly monitor the status of water quality against those standards. Texas uses several strategies to protect water quality, such as issuing permits for discharges to streams and lakes, or devising watershed protection plans with local stakeholders. When these protective strategies are not sufficient to keep surface water bodies clean enough to be used in ways that meet the standards for them, the state takes action to restore water quality.

A WATERSHED APPROACH By looking at a watershed—the geographic area that drains to a common body of water—Texas can evaluate all the sources of pollution that may be affecting water quality. This approach is used to identify water quality problems and issues, to establish statewide and local water quality priorities, to develop community-based solutions, and to cooperate with local stakeholders to implement those solutions. The watershed approach is based on four basic principles:

# geographic focus based on hydrology A watershed is a geographic area in which water, sediments, rather than political boundaries and dissolved materials drain # water quality-based objectives based on into a common outlet. This scientific data outlet could be a stream, lake, playa, estuary, or ocean. # coordinated priorities and integrated Watersheds are also commonly solutions called basins or drainage areas. # diverse, well-integrated partnerships Everything that is done in a watershed can affect the quality These principles guide all activities of the TCEQ of the receiving water body. water quality programs. They provide the framework for coordinating people and activities to achieve the state’s clean water goals.

Protecting our lakes, bays, and streams is a complex process—not only in terms of the number of sources of pollution and the variety of water body types and interactions, but also in the number of people that must be involved. Using a watershed approach, we often find that problems seen at

TCEQ/TSSWCB joint publication SFR-68/04 17 one point in a stream or lake are caused further upstream. With this in mind, we identify and remedy water quality problems at their source.

Managing Surface Water by Geographic Area Texas uses the major watersheds—or river and coastal basins—of the state as the geographic units around which it builds its watershed approach to managing surface water quality.

Classifying Waters Surface waters in the state include lakes, bays, ponds, impounding by Geographic Area reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, Because of the vast extent of surface waters in marshes, inlets, canals, the Gulf of Texas, and the ecological diversity of the state, Mexico inside the territorial limits of the major rivers, lakes, and estuaries have been the state, and all other bodies of subdivided and assigned tracking numbers, called surface water, natural or artificial, inland or coastal, fresh or salt, navi- classified segments. The classified segments are gable or non-navigable. This given numbers that correspond to the major river includes the beds and banks of all basin in which they are located. water-courses and bodies of surface water that are wholly or partially For example, the Brazos River, one of the state’s inside or bordering the state or sub- ject to the jurisdiction of the state; longest rivers, has been divided into 57 separate except that waters in treatment sys- segments and designated as Basin 12. Many lakes tems that are authorized by state or also lie within the Brazos River basin, and are federal law, regulation, or permit, given segment numbers. All the segment numbers and that are created for the purpose have four digits—the first two indicate the basin of waste treatment are not consid- ered to be water in the state. number, and the second two indicate the specific segment. For example, Segment 1210 is Lake Mexia in the Brazos River Basin; Segment 1427 is Onion Creek in the Colorado River Basin.

The areas of the classified segments are defined in the Texas Surface Water Quality Standards. Most of the perennial (always flowing) rivers in the state, and lakes and estuaries with large areas, are classified. Figure 3.1 shows the state’s major rivers and coastal basins, and the basin numbers assigned to them.

However, not all bodies of water in Texas are classified in the Standards. For example, when managing a classified segment of the Brazos River, it may be necessary to examine water quality in the tributaries that flow into that segment—which are part of the segment’s watershed. Some of these tributaries may not be part of the classified segment system. When that happens, for management purposes, the tributary is assigned a tracking number, which is referred to as an unclassified segment.

18 TCEQ/TSSWCB joint publication SFR-68/04 This unclassified tributary will be assigned the number of the classified segment in whose watershed it resides, along with a letter. For instance, Segments 1806A, 1806B, and so on. The same numbering system applies to unclassified lakes. Both classified and unclassified segments are referred to generically as segments. The term water body is used to refer to entire rivers, reservoirs, or estuaries.

TCEQ/TSSWCB joint publication SFR-68/04 19 Figure 3.1 Major River Basins and Planning Areas in Texas 20 The Water Quality Management Cycle The water quality management cycle is the process through which the state works with other organizations and with local residents who have a stake in water quality. This approach is used to continuously identify water quality problems, to establish statewide and local water quality priorities, to develop community-based solutions, and to collaborate with local stakeholders to implement those solutions.

Because environmental planning and implementation are rarely one-time activities, the water quality management cycle has five phases that are repeated regularly (Figure 3.2). This iterative cycle reflects the dynamic nature of watershed management.

A successful management framework must be flexible enough to accommodate this dy- namic nature in an orderly manner over time.

Figure 3.2 demonstrates the dynamic nature of this cycle and the major steps in the process of managing the quality of Figure 3.2. The Water Quality Management Cycle the state’s surface waters.

Managing water quality through a watershed approach requires an ongoing cycle of tasks:

! Standards and Planning: setting standards for surface water quality and revising or formulating monitoring plans; ! Monitoring: collecting data to monitor the condition of surface waters;

TCEQ/TSSWCB joint publication SFR-68/04 21 ! Assessment and Targeting: assessing data to determine water quality status and to identify any impairments; ! Developing Strategies: for protecting, improving, or restoring water quality with pollutant source controls and practices; and ! Implementing Pollution Controls: for both point and non- point sources and evaluating progress, which may lead back to revising those plans or formulating new ones.

Standards and Planning Water quality standards are the foundation for managing surface water quality. A water quality standard is the combination of:

! a designated use and ! the criteria necessary to attain and maintain that use

Standards define the goals for a body of water. The uses prescribe the purposes for which the water should be fit—such as recreation, support of aquatic life, or drinking water supply.

Five general categories for water use are defined under the Texas Surface Water Quality Standards:

! aquatic life use ! contact recreation ! public water supply ! fish consumption ! general uses

The criteria define the instream conditions necessary to support those uses. Criteria are either:

! numeric—a limit on the amount of a certain pollutant that a water body may contain; or ! narrative—a prohibition on a certain condition in the water, such as color, odor, or turbidity.

Water quality standards are the basis for :

! evaluating monitoring data to see if water quality is being maintained, ! setting levels of treatment for permitted wastewater discharges, and

22 TCEQ/TSSWCB joint publication SFR-68/04 ! establishing water quality targets to set total maximum daily loads of pollutants.

Some standards are applied generally to many different water bodies, while some are site-specific. Any one water body will usually have multiple uses designated for it. For example, a lake or stream may be designated for use as a source of drinking, for recreation, and as a healthy environment for fish and other aquatic organisms.

The standards also define an antidegradation policy that protects existing uses and the state’s highest quality waters. The complete Texas Surface Water Quality Standards are available in Title 30 of the Texas Administrative Code (TAC), Chapter 307.

The standards assign specific uses for most Water quality standards are the medium to large water bodies, and general foundation for managing surface water uses for all water bodies. For example, Possum quality. A standard consists of two Kingdom Lake must meet requirements for the parts: specific uses of public water supply, ! a use, or the purposes for which swimming and other recreation, and a high surface water will be used; and quality environment for fish and other aquatic species. Each use defined in the standards is ! criteria, or the indicators that will linked to measurements for specific conditions be used to determine if the use is or pollutants. These measurements are used to met. evaluate whether water quality is good enough Uses and criteria are paired to set the to maintain its designated uses. standards for water quality. For example, one use is habitat for fish and Other basic uses — such as navigation, other aquatic organisms. It is called the "aquatic life use" in the standards. agricultural water supply, and industrial water Criteria used to determine whether the supply — are applicable to all water in the aquatic life use is met may include how state where they can be achieved. much dissolved oxygen is present in the water, how much water flows Some indicators of water quality, such as the through a stream and how deep it is, and how diverse the population of narrative requirements in the general criteria, aquatic organisms. are intended to protect multiple uses and aesthetic conditions.

Aquatic Life Standards associated with the aquatic life use are designed to protect plant and animal species that live in and around the water. Some pollutants or conditions that may result in harm to aquatic species include low levels of dissolved oxygen or the presence of toxic substances such as metals or pesticides in water. Because oxygen is necessary to support life, its concentration in water is an easy-to-measure characteristic that generally reflects the ability of a water body to support a healthy, diverse aquatic population. Other important indicators of suitability for the aquatic life use include concentrations of substances that can be toxic, such as certain

TCEQ/TSSWCB joint publication SFR-68/04 23 metals—like selenium, mercury, and zinc, and some toxic organic pollutants—such as pesticides and some industrial chemicals).

Contact Recreation The standard associated with the contact recreation use is designed to ensure that water is safe for swimming or other water sports that involve direct contact with the water, especially with the possibility of ingesting it. High concentrations of certain bacteria in water indicate that there may be a risk of becoming ill from recreational activities. Though it is possible to swim in water that does not meet this standard without becoming ill, the probability of becoming ill is higher.

Public Water Supply Standards associated with the public water supply use indicate whether water from a lake or river is suitable for use as a source for a public water supply system. Source water is treated before it is delivered to your tap; a separate set of standards governs treated drinking water. Indicators used to measure the safety or usability of surface water bodies as a source for drinking water include the presence or high concentrations of substances such as pesticides or some metals. Concentrations of dissolved minerals, such as sulfate or chloride, are also measured, since treatment to remove high levels of minerals from drinking water may be expensive. Too many dissolved minerals in drinking water may cause a disagreeable taste, odor or color, even after it is treated by public water supply organizations.

Fish Consumption Standards associated with the fish consumption use are designed to protect people from eating fish or shellfish that may be contaminated. These standards identify levels at which certain toxic substances dissolved in water may accumulate in the tissue of aquatic species. In addition, fish tissue is examined for accumulated toxins to determine the risk to human health from consuming fish or shellfish. If significant risk is identified, the Texas Department of Health issues advisories for such water bodies that restrict or limit consumption of fish taken from them. The standards also specify limits on bacteria levels in marine waters to ensure that oysters or other shellfish are safe for public sale and consumption.

Monitoring Water quality data are gathered regularly to monitor the condition of the state’s surface waters. For example, chemical, physical, biological, hydrological, hydraulic, and land use data are collected by the TCEQ, the regional agencies of the Clean Rivers Program, and other organizations, such as state and federal agencies, educational institutions, volunteer monitoring groups, and private organizations under contract to the state. Monitoring plans are guided by quality assurance project plans (QAPPs)

24 TCEQ/TSSWCB joint publication SFR-68/04 that ensure that data are collected according to generally accepted practices and are of sufficient quality to be used in making scientific assessments and management decisions.

Texas conducts five main types of data collection to monitor the status of water bodies:

! routine monitoring ! systematic monitoring ! targeted monitoring ! permit support monitoring ! effectiveness monitoring

Routine monitoring is designed to assess the status and trends of overall water quality throughout the state, and for each river basin. Data are collected using a monitoring network of key sites on the major water bodies in each basin on a regular basis. Monitoring sites may also include smaller water bodies to support characterization of ecoregions and/or basin-specific conditions.

Systematic monitoring focuses on evaluating subwatersheds and unclassified water bodies. Its purpose is to investigate and detect areas of concern, and isolate issues that require further study. It also includes monitoring at sites to check the status of water bodies (identify improvements or concerns). This monitoring strategy rotates resources around the river basin to gather information on water bodies that would not normally be included in the routine monitoring program.

Targeted monitoring is conducted on water bodies where there is reason to believe there is a threat or a concern for water quality, to establish the extent and degree of an impairment, or to determine the best strategy for restoring water quality. Sometimes called special studies, targeted monitoring activities usually involve intensive periods of data collection at sites where routine or systematic monitoring identified impacts, concerns, or impaired uses.

Permit support monitoring is used to address specific areas where additional information is need to support the development of permits that allow wastewater discharges. This may include studies to gather site- specific information for use in developing permits.

Effectiveness monitoring is conducted to evaluate whether management practices, regulatory measures, and watershed improvement and restoration plans are producing the desired results.

The CRP plays a key role in the TCEQ’s yearly integration of these various monitoring needs into a coordinated monitoring schedule for the

TCEQ/TSSWCB joint publication SFR-68/04 25 entire state. The schedule shows all surface water monitoring being conducted by the TCEQ or under its contracts or cooperative agreements for each planning year. It does not include coordination of monitoring by wastewater dischargers that is reported to the state as a condition of their permits.

Planning and development of the coordinated monitoring schedule takes place from January through May preceding the state fiscal year for which the plan is developed. To support coordinated monitoring, the TCEQ has developed guidance for selecting sites and for sampling methods for routine, systematic, and targeted monitoring. The coordinated monitoring schedule is hosted by the Lower Colorado River Authority, a CRP agency, on its Web site at http://cms.lcra.org/.

Coordination of State and Regional Priorities The TCEQ works in partnership with the Texas Clean Rivers Program (CRP) to set regional priorities for protecting and improving the state’s surface waters. The CRP brings together state, regional, and federal agencies to:

! eliminate duplication in monitoring surface water quality and thereby leverage resources; ! support data sharing and quality assurance by creating uniformity in methods; ! establish regional stakeholder forums to involve the public in identifying, prioritizing, and managing local water quality issues; ! set priorities and schedules for monitoring; and ! identify problems and preventive or remedial measures.

To support those goals and the TCEQ’s overall water quality management program, the CRP’s long-term action includes nine key methods:

! Ensure efficient use of public funds. ! Enhance public participation and outreach. ! Encourage comprehensive and cooperative watershed planning. ! Maintain basin-wide water quality monitoring programs. ! Develop and maintain a river basin water quality database clearinghouse. ! Provide quality-assured data to the TCEQ for use in water quality decision-making. ! Focus on priority issues and address local initiatives.

26 TCEQ/TSSWCB joint publication SFR-68/04 ! Identify, analyze, and report on water quality issues and potential causes of pollution. ! Identify and evaluate alternatives for preventing and reducing pollution.

Through its activities, the CRP plays a vital role in ensuring clean, useable water supplies for Texas. The partner agencies for the CRP, and the regions for which they are responsible, are shown in Figure 3.1.

Assessment and Targeting Every two years, the states must assess the quality of their water and target those water bodies for which additional data collection or restoration efforts are required. This information is submitted to the U.S. Environmental Protection Agency (EPA) in a report that details the extent to which each water body in the state meets water quality standards. The TCEQ publishes this biennial assessment as the Texas Water Quality Inventory and 303(d) List.

In the past, Texas published two different reports, often referred Assessment is the to as the 305(b) Report and 303(d) List, after the sections in the evaluation of data Clean Water Act that describe the requirements of the assessment. and information Since 2002, both reports have been published as one document, in against a set of accordance with guidance from the EPA. The document still has standards or benchmarks. essentially two main parts: the Inventory, which gives the status of all the waters in the state, and the 303(d) List, which identifies waters that do not meet one or more of the standards established to ensure the beneficial use of the water body.

The Inventory The Inventory describes the status of all surface water bodies of the state that were evaluated for the given assessment period. The TCEQ uses data collected during the most recent five-year period in making its assessment. The data are gathered by many different organizations that all operate according to approved quality control guidelines and sample collection procedures. The quality of waters described in the Inventory represents a snapshot of conditions during the time period considered in the assessment. Water quality is dynamic and constantly changing.

The assessment guidance is based on a set of methods that apply the surface water quality standards and criteria. These methods are developed by the TCEQ with the advice of a diverse group of stakeholders, and are made available to partner organizations and stakeholders every two years, prior to the biennial assessment in which they will be used.

TCEQ/TSSWCB joint publication SFR-68/04 27 The 303(d) List The 303(d) List is an important management tool produced as part of the assessment. It identifies waters for which preventive measures have not been sufficient to achieve water quality standards. The 303(d) List is subject to review and approval by the EPA.

When a water body is identified on the 303(d) list, certain new requirements may apply for facilities that discharge wastewater into the listed water body. Importantly, the TCEQ may not allow any new or expanded discharges of a listed pollutant into a Category 5 water body if it contributes to the impairment. Other possible effects on permits that may result from a restoration plan for the water body include:

! TCEQ may initiate amendments to impose new limits, or may impose them with routine renewals or amendments. ! Permitted loading from existing facilities may be substantially reduced. ! New facilities may be required to meet more stringent effluent limits than expected. ! In some cases or areas, storm water permits may receive new or more stringent limits. ! Dischargers may no longer be eligible for general permits. ! Additional monitoring and reporting requirements may be added.

Additional nonpoint source management practices may also be required, such as:

! Management of runoff by such means as detention basins, filter strips, infiltration basins, porous pavement, retention ponds, and swales. ! Management of operations to decrease or eliminate pollutants in runoff, such as spill prevention and control, source controls, and education.

Categories Indicate Water Quality Status The Inventory assigns each assessed water body to one of five categories to provide information to the public, the EPA, and internal agency programs about water quality status and management activities (see Table 1). The categories indicate the status of the water body, and how the state will approach identified water quality problems.

Higher category numbers correspond to higher levels of effort required to manage water quality. For example, water bodies in Category 5 constitute the 303(d) List, and require remedial action by the state to restore water

28 TCEQ/TSSWCB joint publication SFR-68/04 quality. For water bodies in Category 5a, the state must develop a scientific model called a total maximum daily load (TMDL) and a plan to implement it (these are discussed in more detail in the section “Restoring Water Quality”). Water bodies in Category 1 are meeting all their uses, and require routine monitoring and preventive action.

Table 3.1 Categories of Use Attainment in the Water Quality Inventory Category 1 Attaining all water quality standard and no use is threatened.

Category 2 Attaining some of the designated uses; no use is threatened; and insufficient or no data and information are available to determine if the remaining uses are attained or threatened.

Category 3 Insufficient or no data and information to determine if any designated use is attained.

Category 4 Standard is not supported or is threatened for one or more designated uses but does not require the development of a TMDL.

Category 4a TMDL has been completed and approved by EPA.

Category 4b Other pollution control requirements are reasonably expected to result in the attainment of the water quality standard in the near future.

Category 4c Nonsupport of the water quality standard is not caused by a pollutant.

Category 5 Category 5 is the 303(d) list. The water body does not meet applicable water quality standards or is threatened for one or more designated uses by one or more pollutants.

Category 5a A TMDL is underway, scheduled, or will be scheduled.

Category 5b A review of the water quality standards will be conducted before a TMDL is scheduled.

Category 5c Additional data and information will be collected before a TMDL or review of the water quality standard is scheduled.

Further, these categories must be applied to each Impairment combination of designated use and the parameter The combination of one designated (pollutant or condition of concern) that determines use with one pollutant or condition support of beneficial uses. The combination of the of concern. use with the parameter is called an impairment. Parameter For example, the concentration of dissolved A pollutant or condition affecting a oxygen is one of the criteria used to determine the body of water; also, a criterion used support of the aquatic life use. If dissolved oxygen to measure attainment of a particu- concentrations are too low, one impairment would lar use. Examples include low dis- exist for the water body under examination. solved oxygen concentrations, a particular metal such as zinc, or a particular pesticide such as DDT. Since a water body has multiple uses, it may fall into different categories for different uses. In that

TCEQ/TSSWCB joint publication SFR-68/04 29 case, the overall category for the water body is the one with the highest category number.

For example, Spring Creek, Segment 1008 in the San Jacinto River Basin, does not support the contact recreation use (Category 5c) nor the aquatic life use (Category 5b). It supports the public water supply and general uses, and the fish consumption use has not been assessed. The designation for the entire water body is Category 5b, since that is the highest category associated with any one of its uses.

Ranking Category 5a Segments After the draft 303(d) List is compiled, the TCEQ assigns a rank of High, Medium or Low to each impairment (see Table 3.1) of Category 5a segments. This rank is used in determining the priority for implementing TMDLs. The rank is based on criteria such as the degree to which the water quality standard is exceeded, and the level of public concern (as judged, in part, by the interest of local groups). Comments are accepted during the public review period and changes may be made as a result of public comment.

Factors considered in the ranking include:

! whether the impairment affects human health ! proximity of one impaired segment to others that have similar or related pollutants ! local and regional support for TMDL development ! data availability for immediate TMDL development ! similarity of the strategies and actions needed to address impairments

The specific criteria and point system used for scheduling waters for TMDL development is shown in Table 3.1.

Scheduling Management Activities for Listed Waters The amount of time it takes to address a listed segment varies greatly. In some cases, a segment may be addressed within one to three years of its listing; in other cases, several years may be needed.

Several factors influence the scheduling of management activities for all three categories (5a, 5b, and 5c) of the list, such as the number of successive years a segment has been on the list, scheduled permit renewals, or administrative demands. Available funding ultimately determines how many new restoration or management projects will be initiated annually.

30 TCEQ/TSSWCB joint publication SFR-68/04 Schedule for TMDL Development The TCEQ is committed to beginning development of TMDLs for all segments in Category 5a within 10 years of their initial listing. In compliance with the federal regulations, the TCEQ prepares a schedule after each Water Quality Inventory is completed that identifies the TMDLs that will be initiated within the next two years.

The most important factor in determining the schedule is the priority ranking assigned to each impairment. Others factors include additional data or information gathered since the listing and ranking, and the availability of funding. The TMDL schedule is submitted to the EPA in April of even-numbered years along with the 303(d) List.

Table 3.2 Criteria for Prioritizing TMDLs (Category 5a Waters) for Development 1. The pollutant causing the impairment is a: Points

A. Threat to human health 50 Includes nonsupport of the following uses: public water supply, contact recreation, fish consumption, oyster waters.

B. Threat to aquatic life 30 Includes nonsupport of the following uses: aquatic life, general, and narrative criteria

C. Threat to both human health and aquatic life 30

2. Watershed proximity, related pollutants, and the ease of incorporating a newly identified Points parameter of nonsupport into an existing project.

A. Ongoing TMDL in the same segment for a different pollutant 10

B. Ongoing TMDL in the same segment watershed for the same pollutant 20

C. Ongoing TMDL in the same segment watershed for a different pollutant 10

D. Ongoing TMDL in a contiguous watershed for the same pollutant 10

E. No ongoing TMDL in the same segment or contiguous watershed 0

3. Data availability for TMDL development Points

A. Ongoing modeling activities in the segment 10

B. Recent targeted data collection activities within the segment, other than routine 10 monitoring

C. TMDL tools still in development (for example, bacteria source tracking, mercury) -30

4. Local and regional support for TMDL development Points

A. River Authority and/or Council of Government active in current or recent TMDL project 20

B. TSSWCB or other state agency active in current or recent project 20

C. Dedicated regional staff are available in TCEQ region of the project 10

D. Positive stakeholder interest within the segment watershed 10

TCEQ/TSSWCB joint publication SFR-68/04 31 E. Strong opposition to the project -10

5. Year of listing: under the commitment by TCEQ leadership in 1997 to begin Points development of TMDLs within 10 years of listing, water bodies listed earlier have a higher priority. If original listing year is:

A. 1998 50

B. 2000 40

C. 2002 30

D. 2004 20

E. 2006 10

6. Best available funding information, with first priority given to ongoing projects. If Points project status is:

A. > 50% complete 50

B. < 50% complete 20

C. New project 0

Total Points Priority < 80 Low 90-160 Medium > 160 High

Strategies for Protecting and Improving Water Quality At all times, the TCEQ is protecting water quality through various programs. Just the act of monitoring and assessing water quality is a form of protection, since it informs state officials and the public about the status of Texas rivers, lakes, and estuaries and about water quality management needs. More water bodies are being assessed each year, leading to more timely identification of problems. But much more is being done on a regular basis—such as issuing permits that limit pollutant discharges to protect rivers, lakes, and bays, developing plans to protect sources of drinking water, and educating people about water quality issues.

The TCEQ’s pace and progress in addressing impairments on the 303(d) list has risen sharply over the past five years. More TMDLs are being developed and implemented. The water quality standards were revised in 2000, and numerous analyses are being conducted to determine whether the currently defined uses are attainable at specific sites. In addition, other studies are underway to further improve the existing standards. More data are gathered each year to ensure that we have as sound a basis as possible for establishing existing and new controls. The TCEQ water quality programs strive at all times to provide accurate assessment, and to

32 TCEQ/TSSWCB joint publication SFR-68/04 continually improve the tools and information used to manage water quality.

Permits to Protect Water Quality The TCEQ issues permits that control discharges of wastewater into the surface waters of the state. Many types of discharges are regulated, such as the effluent from industries, domestic wastewater from city treatment plants, discharges from certain agricultural operations, and the storm water that runs off urban areas. The TCEQ also requires pretreatment permits for some wastewater treatment plants that are publicly owned.

The owners and operators of these facilities, called dischargers or permit- tees, are responsible for using the best technologies that are both available and practical to reduce pollutants in the effluent from their facilities. Many different kinds of pollutants are regulated by permit, including metals, pesticides, organic compounds, and treated human waste. Permit limits on the emission of pollutants into the air may also prevent water pollution, since pollutants in the air can settle into creeks and lakes. However, this issue is very complex, and scientists currently do not have a good understanding of how to control water pollution from air deposition.

The TCEQ works to conserve potable water sources through permits that regulate the recycling, beneficial reuse, and disposal of sludge. Sludge is the muddy solid waste produced during the water and sewage treatment processes. Texas’ federal and state requirements for wastewater and sludge permitting are codified in the Texas Administrative Code.

The TCEQ also protects wetlands and other surface waters through its certification of federal permits that regulate the discharge of dredge or fill material into the waters of Texas. The state’s certification that federal dredge and fill activities will not degrade wetlands or other surface waters is required under Section 401 of the federal Clean Water Act. The U.S. Army Corps of Engineers issues dredge and fill permits after certification by the TCEQ.

The TCEQ’s wastewater and sludge permitting activities are required under Section 402 of the federal Clean Water Act, and implemented federally through the National Pollutant Discharge Eliminations System. In 1998, the TCEQ was authorized by the EPA to issue Section 402 permits on behalf of the federal government, with the exception of discharges associated with oil, gas, and geothermal exploration and development activities, which are regulated by the Railroad Commission of Texas. The TCEQ combined its state-issued wastewater permits with the federal permits that were delegated to it under the Texas Pollutant Discharge Elimination System.

TCEQ/TSSWCB joint publication SFR-68/04 33 Protecting Stream Flows Water availability is an issue in Texas due to the increasing difficulty of meeting the needs of people, industry, wildlife, and habitats. Across the state, naturally occurring periods of low water availability are exacerbated by the increases in human population and in activities that require water. According to the State Water Plan published by the TWDB, the total demand for water is expected to increase 18 percent from 2000 to 2050.

The availability of water in streams is an issue of quality as well as quantity. Insufficient water flows in streams can affect the quality of the aquatic environment, or can reduce a stream’s capacity to assimilate wastewater discharges. It can also limit the flows of fresh water into downstream estuaries, which are dependent on fresh water for their ecological health and fisheries uses.

The TCEQ cooperates with the TPWD and the TWDB to collect instream flow data collection and analyze and evaluate the information to determine the flow conditions necessary to support a sound ecological environment.

The TCEQ also conducts environmental reviews of water rights applications to assess the possible impacts of granting of a water right on fish and wildlife habitat, water quality and the instream uses associated with the affected body of water. Possible impacts to bays and estuaries are also addressed for those permits within 200 miles of the Gulf of Mexico.

The monitoring of stream flows and protection of instream uses is required and authorized under TCEQ rules, and by Texas House and Senate bills.

Protecting Sources of Drinking Water The aquifers, lakes, and rivers that are designated by law for use as sources of drinking water are called source waters. The TCEQ protects source waters by:

! assessing their susceptibility to pollution. ! assisting local communities to develop source water protection programs.

A report assessing the vulnerability of each source water is provided to the operators of systems that supply public drinking water. The assessments consider the location of pollutant sources, intrinsic characteristics, contaminant occurrence, well construction, geology, known point sources, and land uses that occur within the capture zone of groundwater wells and within the watersheds of surface water intakes.

The assessments provide the scientific basis for the implementation of source water protection projects. Water systems are encouraged to take an

34 TCEQ/TSSWCB joint publication SFR-68/04 active role in verifying the completeness and accuracy of the data used in the assessment report.

Source water protection is a program to prevent A water body is called “impaired” if it contamination of groundwater or surface water does not meet one or more of the that is used as a source of public drinking water. standards established for its use. For example, a water body may be Water suppliers implement source water designated as impaired for the protection programs by working cooperatively aquatic life use if dissolved oxygen with community members and by educating concentrations are chronically low. people about issues that affect their drinking The water body may be attaining all water. All public water supply systems may its other uses—as a source for drinking water, and as a safe place receive assistance in developing plans and to fish or swim—but still be implementation measures free of charge. designated as impaired because all Priorities for state assistance with plan uses are not attained. development are set according to the results of the susceptibility assessments.

The protection and assessment of source waters is required and authorized under Section 1453 of the federal Safe Drinking Water Act.

Watershed Protection Plans Watershed protection plans may be developed to protect high-quality waters, to address threatened waters before they become impaired, or to restore water bodies for which TMDLs are not planned or developed. These plans are still based on environmental targets, usually maintaining the applicable water quality standards. The types of goals and strategies that may be used in watershed protection plans are outlined in the EPA’s guidance for federal nonpoint source grants authorized under Section 319 of the Clean Water Act.

Watershed protection plans:

! describe the sources of pollution affecting a particular water body. ! define the actions needed to reduce pollution or restore water quality, both regulatory and voluntary. ! are developed in cooperation with regional and local stakeholders.

Watershed protection plans provide the opportunity to improve and protect water quality so that potential problems are addressed before the stream, lake, or bay actually fails to meet water quality standards.

Implementing Plans to Restore Water Quality After a water body is listed in Category 5 [the 303(d) list], several different courses may be pursued to bring it into compliance with the standards. Further evaluation may be necessary to determine if the current

TCEQ/TSSWCB joint publication SFR-68/04 35 standard is appropriate, or to determine the cause of the impairment. The TCEQ may begin a project to reduce pollution and restore the impaired use under its Total Maximum Daily Load (TMDL) Program. The TCEQ undertakes new projects to restore water quality with each new assessment, while continuing to complete and implement plans for waters listed in previous years.

For water bodies that are impaired due wholly or in part to nonpoint source (NPS) pollution, federal grant funds provided under Section 319 of the Clean Water Act play a key role in implementing restoration projects. These grants provide support for management practices that improve the quality of impaired or threatened waters, and are often used to support development and implementation of TMDLs. NPS grants are also used to implement watershed protection plans that are not associated with TMDLs; to conduct special projects that assess impacts due to NPS pollution; and to prevent the degradation of healthy rivers, lakes, and bays.

Standards Analysis Water bodies are placed in Category 5b if there is reason to believe that one or more of the assigned standards may be inappropriate because of local conditions that are not due to human impacts. Waters in this category are slated for an analysis of their standards, called a use attainability analysis, or UAA.

For example, to determine appropriate aquatic life uses and related dissolved oxygen criteria, a UAA may consider aspects such as regularity of flow, habitat structure, typical water chemistry, and fish and other aquatic organisms that are characteristic in the area. Some rivers and lakes naturally support an abundant and diverse aquatic community, while other water bodies—such as small streams with intermittent flow—tend to have fewer types and total numbers of aquatic organisms. In addition, some water bodies might support a diverse aquatic community and fishery even though some components of their overall water quality are not superior under natural conditions.

Depending on the results of the UAA, uses and/or supporting criteria may be revised to be more or less stringent. Revisions of the standards are reviewed by the public, adopted by the Commission, and approved by the EPA. When a review and any resulting revisions of the standard are completed, the water body may be moved to another subcategory of the 303(d) List, or to another category of the Inventory.

Targeted for Monitoring and Additional Assessment Water bodies in Category 5c are targeted for additional monitoring and assessment. Water bodies may be placed in this category when there is insufficient information to determine the best course of action. The TCEQ and its monitoring partners collect the additional data and information

36 TCEQ/TSSWCB joint publication SFR-68/04 needed to determine if a standards review is appropriate, if a TMDL should be scheduled, or, more rarely, to determine the degree and geographic extent of nonsupport. Depending on the results, the water body may be moved to another subcategory of the 303(d) List, or to Category 1 or 2.

TMDLs and Implementation Plans TMDLs and their implementation plans are developed to address water bodies listed in Category 5a. States must establish a TMDL for each impairment in each water body in Category 5a. This may mean that several TMDLs may be developed for one river or lake. A TMDL must also allocate this load to the point and nonpoint sources of pollution in the watershed. The state must then develop an implementation plan to achieve the loading allocations defined in the TMDL. TMDLs are subject to EPA approval; implementation plans are not.

Total Maximum Daily Loads In order to restore water quality, it is first necessary to be reasonably certain of the sources and causes of pollution. One way to accomplish this is to develop a scientific model called a total maximum daily load (TMDL).

TMDL Implementation Plans (IPs) and A TMDL: Watershed Protection Plans (WPPs) ! determines the maximum Both IPs and WPPs have the same goal — amount of a pollutant that a improving water quality in rivers, lakes, or bays. water body can receive and ‘ How they differ: still both attain and maintain its water quality standards; T IPs are remedial actions for impaired and waters; WPPs may be either remedial or preventive. ! allocates this allowable T IPs are based on total maximum daily amount (load) to point and loads; WPPs use other measurable nonpoint sources in the environmental goals for water quality. watershed. ‘ How they are alike: T Define actions needed to reduce TMDLs must be submitted to the pollution and restore water quality. Environmental Protection Agency T Include both regulatory and voluntary (EPA) for review and approval. A actions. TMDL is normally prepared for each T Are developed in cooperation with pollutant in each impaired water body. regional and local stakeholders. In general, a TMDL should be T Are based on the best available scientific methods and tools. completed within 13 years of the initial listing of a water body.

Implementation Plans After a TMDL is completed, an implementation plan is developed that describes the regulatory and voluntary activities necessary to achieve the

TCEQ/TSSWCB joint publication SFR-68/04 37 pollutant reductions identified in the TMDL. Management activities incorporate both nonregulatory and regulatory mechanisms, such as permit effluent limits and recommendations, nonpoint source pollution management practices, stream standard revisions, special projects, pollution prevention, public education, and watershed- specific rule recommendations. The best strategies for each individual watershed are developed in cooperation with regional and local stakeholders.

The implementation plan describes these various activities, the schedule for implementing them, and the legal authority for the regulatory measures. It also provides reasonable assurance that the voluntary practices will be undertaken. For instance, the plan may identify grant funds that have been secured to implement voluntary actions. The plan also includes the measurable results that will be achieved through the plan, along with a follow-up monitoring plan to determine its success. The ultimate goal is always the attainment of the water quality standard, but additional, interim results may be evaluated to assess progress toward that goal.

Even after plans are fully implemented, it is difficult to accurately predict how long it will take for improvements to occur in the stream, or how much improvement will be seen. For this reason, there is a schedule for phasing in implementation activities, especially those that address non- point sources of pollution. Less expensive, time-tested activities are implemented first, and their impacts are assessed. If water quality standards are not yet achieved, then another set of regulatory and/or nonregulatory activities is implemented. Through this adaptive management approach, the water body is reassessed, and adjustments are made in the implementation activities as needed to attain water quality standards in the stream.

A Joint Effort—Stakeholder Involvement Stakeholders are involved in each of the water quality management cycle through participation in standing and special committees.

The TCEQ is designated by law as the lead state agency for water quality in Texas. The Texas State Soil and Water Conservation Board (TSSWCB) also plays an important role as the lead agency in the state for the management of agricultural and silvicultural (forestry) nonpoint source runoff. The Texas Clean Rivers Program—a partnership of regional water management authorities—plays a key role in providing forums for stakeholder involvement and coordinating water quality management activities (see Figure 3.1 - Major River Basins and Planning Areas in Texas).

Many other local, regional, state, and federal agencies have specific responsibilities that are critical to the restoration of polluted water bodies.

38 TCEQ/TSSWCB joint publication SFR-68/04 Nongovernment organizations, especially at the watershed level, can provide information about local concerns and infrastructure, and can help build support for the kind of pollution controls that may be required to restore water quality.

A coalition of government agencies and citizens is necessary to develop and implement water quality protection and restoration strategies. Public participation in watershed protection plans and TMDL implementation plans provides the following benefits:

! improves the quality and increases the quantity of information used as the basis for plans, ! promotes government accountability, ! ensures that state government considers the local perspective in its decisions, ! helps stakeholders gain insight into the nature of water quality problems and alternate solutions in their communities, ! leads to voluntary individual actions to curb pollution, and ! local ownership of water quality.

Who Are Stakeholders?

Stakeholders include all individuals or organizations in the watershed who have one or more of these attributes:

! are significant contributors of pollutant loadings or other impacts to water quality; ! are significantly affected by water quality problems; ! are directly affected by project outcomes or decisions; ! may be required to undertake control measures because of statutory or regulatory requirements; ! have statutory or regulatory responsibilities closely linked to water quality—for example, flood control; ! can help develop or implement actions to remedy water quality problems; ! live in the watershed or use the water resource.

Although not an exhaustive list of possible stakeholders, these categories give some examples of the kinds of groups and people who may become involved in protecting and restoring water resources:

TCEQ/TSSWCB joint publication SFR-68/04 39 ! Wastewater dischargers–municipal and industrial. ! Public–individuals; civic groups such as those representing environmental, consumer, recreational, and community interests; schools, universities, and private landowners. ! Agriculture and aquaculture – corporate and individual farmers, ranchers, and producers; subsistence and commercial harvesters of fish and shellfish; agricultural groups and organizations.

! Business –commercial, residential, and industrial firms; utilities, business groups, and trade associations. Figure 3.3 Stakeholder Forums ! Government–city, county, regional, state, federal, and international government agencies, tribes, utility districts, and river authorities.

Coordination of Stakeholders Coordination of stakeholders takes place at three levels (see Figure 3.3 - Stakeholder Forums):

! statewide for agencies and organizations that conduct water quality management activities across the entire state, to target and synchronize their efforts. ! regionally to assess conditions within a basin and establish basin-specific goals and priorities. ! locally to develop watershed protection plans and TMDL implementation plans that have local support and input.

40 TCEQ/TSSWCB joint publication SFR-68/04 Clean Rivers Program Stakeholders Work Group Comprised of staff from the regional planning agencies of the Clean Riv- ers Program (CRP), the work group represents stakeholder interests at the state level. The CRP Stakeholders Work Group coordinates with the TCEQ and other state agencies at annual meetings. See Figure 1 for a list of the CRP planning agencies and the regions they manage.

Basin Steering Committees Basin steering committees of the Clean Rivers Program provide the primary forum for coordinating stakeholder involvement at the regional level. These committees carry out educational activities within the basin, such as workshops and volunteer programs. They also produce public information products and conduct promotional campaigns through various media.

Local Watershed Work Groups These work groups, comprised of key stakeholders in priority watersheds, provide valuable input about local conditions. They develop site-specific strategies for developing watershed protection plans or TMDL implementation plans.

Education The TCEQ has numerous projects and programs to inform the public and their representatives about issues that affect water quality and ways individuals and regulated organizations can act to protect and improve the environment. These programs range from technical assistance to business owners to ad campaigns to formation of stakeholder groups to advise the agency.

Education is integrated into most water quality programs at the TCEQ. Educational activities may include presentations to stakeholder groups, forums to share pollution reduction technologies, public awareness campaigns, or distribution of educational materials to schools and volunteer groups.

GAUGING SUCCESS Success of the state’s water quality management program is gauged by progress made toward protecting or restoring water quality uses that benefit wildlife, people, and the environment. Some of the reports of success that the TCEQ is charged with producing include:

# progress report on environmental and program goals for the Texas Legislative Budget Board # biennial reports to the Texas Legislature

TCEQ/TSSWCB joint publication SFR-68/04 41 # annual reports of TMDL implementation and nonpoint source management activities # the Texas Water Quality Inventory and 303(d) List.

With the exception of the report to the Legislative Budget Board, these documents are available on the TCEQ’s Web site at www.tceq.state.tx.us.

Making successful management decisions depends on understanding the relationships among water quality, water use, and conditions within a watershed. With the watershed approach, Texas integrates policy, science, and people to ensure clean water for years to come.

42 TCEQ/TSSWCB joint publication SFR-68/04 Chapter 4 Coordination The State of Texas Nonpoint Source Program envisions a partnership among many organizations, both public and private, to protect and restore water quality. With the extent and variety of water quality issues across Texas, the need for cooperation at all levels is essential. Surface water bodies and aquifers are not limited by political boundaries and therefore environmental solutions often cross federal, state, and local levels of responsibility. By establishing a coordinated framework to share information and resources, while minimizing unnecessary duplication, the State can more effectively focus its water quality protection efforts. Chapters 6, 7, and 8 describe the programs and best management practices that are implemented to address NPS pollution. This chapter provides a description of the agencies and organizations that implement the tools described in Chapters 5, 6, and 7 to protect and restore water quality.

Interstate and International Coordination The State of Texas coordinates with neighboring U. S. states and Mexico in protecting water resources in those watersheds or aquifers which cross political boundaries. Cooperation is multidimensional, involving governments at every level; voluntary, non-governmental organizations; private businesses; and the public. A number of programs and activities are in place to facilitate collaboration between jurisdictions.

Interstate Coordination The TCEQ and TSSWCB are involved in interstate coordination of water resource protection activities through membership in national organizations such as American Water Works Association (AWWA), Association of State Drinking Water Administrators (ASDWA), Association for State and Interstate Water Pollution Control Administrators (ASIWPCA), Council of State Governments (CSG), National Association of State Conservation Agencies (NASCA), National Association of Conservation Districts (NACD), and the Ground Water Protection Council (GWPC).

The TCEQ and TSSWCB, working through EPA Region 6, coordinate with the states of Arkansas, Louisiana, New Mexico, and Oklahoma through scheduled State-EPA meetings and conferences. These gatherings provide a forum for information exchange and discussions on the future direction and implementation of the Nonpoint Source Program.

International Coordination At the international level, the Border Environment Cooperation Commission and the North American Development Bank work with states and communities to develop needed water and waste infrastructure

TCEQ/TSSWCB joint publication SFR-68/04 43 projects. In addition, Texas is one of the participants in the Ten State Initiative, which brings together environmental representatives from the U.S. and Mexican border states to discuss and act on environmental priorities.

As a result of that commitment, the TCEQ has implemented State-to-State Strategic Environmental Plans with the environmental agencies of each of Texas' four neighboring Mexican states (Tamaulipas, Nuevo León, Coahuila, and Chihuahua). A variety of programs has evolved from the communication brought about by these plans, including industry recognition and pollution prevention programs, as well as a Border Recycles Day.

The need to engage on a broad set of environmental issues resulted in the signing by the U.S. and Mexico of the La Paz Agreement in 1983. Ten years later, the North American Free Trade Agreement (NAFTA) further reinforced ties between the U.S. and Mexico. It included environmental side agreements that established both trilateral and binational entities to address environmental issues.

Various state agencies in Texas have developed programs that have an important effect on the border. Some, such as the Texas Water Development Board's Economically Distressed Areas Program, help communities plan and develop needed infrastructure. The programs discussed below are designed to improve the environment of the border region.

TCEQ Border Affairs Program The TCEQ Border Affairs Program works closely with TCEQ regional offices in Laredo, Harlingen, El Paso, and San Antonio to resolve concerns for border residents. As an information clearinghouse, the group has daily contact with government officials on both sides of the border. Border Affairs has helped foster cross-border environmental agreements and programs with Mexican counterparts at the local, state, and federal levels and with stakeholders in the private sector and non-governmental organizations. The group has worked on environmental infrastructure matters with the Border Environment Cooperation Commission and the North American Development Bank.

Border 2012 Program The U.S. Environmental Protection Agency, its Mexican counterpart, the Secretaría de Medio Ambiente y Recursos Naturales (SEMARNAT), the U.S. and Mexican border states, and U.S. border tribes, have developed the Border 2012 program to protect the environment and public health in the border region. The program focuses on decreasing pollution and lowering the risks of exposure to pesticides and other chemicals. The goal of the program is to achieve measurable improvements in air, water and soil quality in the border region by the year 2012.

44 TCEQ/TSSWCB joint publication SFR-68/04 The focus of Border 2012 is to address environmental issues at the local level by decentralizing the decision making and priority setting processes, with implementation driven by four Regional Workgroups, three Borderwide Workgroups and three Policy Forums. Regional Workgroups address environmental issues affecting specific sub-regions. The border-wide workgroups address binational and transboundary aspects of environmental health, emergency preparedness and response, and cooperative enforcement and compliance. Policy Forums focus on broad issues concerning air and water quality, and the effective management of hazardous and solid waste and toxic substances. In addition, task forces will be created, as needed, to implement projects at the local level consistent with the needs of the region and the goals of the program.

The Rio Grande/Río Bravo Basin Coalition The Rio Grande/Río Bravo Basin Coalition is a multinational, multicultural organization with leadership from the U.S., Mexico, and the Pueblo Nation. Its purpose is to help local communities restore and sustain the environment, economies, and social well-being of the Rio Grande/Río Bravo Basin. The coalition has 50 partner organizations from around the watershed which share a commitment to the health and long-term sustainability of the Río Grande/Río Bravo Basin. The belief is that building coalitions across borders is the best way to solve international environmental problems.

The Coalition organizes the Día del Río citizen-led event. The event is both a call to action and a celebration of the basin's rich diversity, and it draws public attention to the critical state of the basin's rivers, groundwater, and wildlife. Activities focus on raising awareness and include public talks, tree planting, and river cleanups.

International Boundary and Water Commission The International Boundary and Water Commission (IBWC) encourages and coordinates the establishment of cooperative relationships with federal, state, and local agencies, both in the U.S. and in Mexico, in carrying out activities along the border. The U.S. and the IBWC may undertake cooperative projects to implement existing treaties and other agreements between the two Governments. Projects may originate with the emergence of an environmental problem requiring the agreement and cooperation of the two Governments for a solution. Because of the international nature of the Rio Grande, the State of Texas has contracted with the U.S. Section of the IBWC to implement the Clean Rivers Program, including the Friends of the Rio Grande initiative, in its 1,254-mile international boundary section.

TCEQ/TSSWCB joint publication SFR-68/04 45 Federal Agencies

Environmental Protection Agency EPA works to develop and enforce regulations that implement environmental laws enacted by Congress. EPA is responsible for researching and setting national standards for a variety of environmental programs, and delegates to states and tribes the responsibility for issuing permits and for monitoring and enforcing compliance. While EPA protects the nation's natural resources primarily through regulation, EPA has also developed a wide variety of funding, planning, and education programs that are effective in protecting environmental quality.

U.S. Geological Survey The U.S. Geological Survey (USGS) has the principal responsibility within the Federal Government to provide the hydrologic information and understanding needed by others to achieve the best use and management of the Nation's water resources. Through the National Water Quality Assessment Program (NAWQA), USGS scientists collect and interpret data about water chemistry, hydrology, land use, stream habitat, and aquatic life. The NAWQA Program is a primary source for long-term, nationwide information on the quality of streams, groundwater, and aquatic ecosystems. This information supports national, regional, State, and local decision making and policy formation for water-quality management. The goals of NAWQA are to assess the status and trends of national water quality and to understand the factors that affect it.

National Oceanic and Atmospheric Administration Programs work to protect, restore, and responsibly develop the nation's coastal communities and resources while ensuring their protection for future generations.

U.S. Army Corps of Engineers The U.S. Army Corps of Engineers is a worldwide organization that provides engineering services, environmental restoration, and construction support for a wide variety of civil and military projects. The Corps' primary civil mission is developing and managing the nation's water resources. The Corps develops projects to reduce flood damage; improves navigation channels and harbors; protects wetlands; and preserves, safeguards, and enhances the environment.

U.S. Coast Guard The U.S. Coast Guard is a military, multi-mission, maritime service and one of the nations five Armed Services. Its mission is to protect the public, the environment, and U.S. economic interests – in the nations ports and

46 TCEQ/TSSWCB joint publication SFR-68/04 waterways, along the coast, on international waters, or in any maritime region as required to support national security. The Coast Guard addresses the wide ranging problems associated with preventing, responding to, and paying for pollution associated with oil spills and leaks. It does so by creating a comprehensive programs that deal with prevention, response, liability, and compensation of spills from vessels and facilities in our navigable waters.

U.S. Department of Agriculture The U.S. Department of Agriculture (USDA) is committed to helping America's farmers and ranchers. The USDA is the steward of the nation's 192 million acres of national forests and rangelands. It is the country's largest conservation agency, encouraging voluntary efforts to protect soil, water, and wildlife on the 70 percent of America's lands that are in private hands. USDA is a research leader in everything from human nutrition to new crop technologies that allow us to grow more food and fiber using less water and pesticides.

USDA-Natural Resource Conservation Service The mission of the Natural Resources Conservation Service (NRCS) is to provide technical and financial assistance to landowners and operators on soil and water conservation matters. Work is directed through local soil and water conservation districts in Texas, according to the terms of memoranda of understanding with each district.

USDA-Farm Services Agency The principal mission of the Farm Services Agency (FSA) includes stabilizing farm income, helping farmers conserve land and water resources, providing credit to new or disadvantaged farmers and ranchers, and helping farm operations recover from the effects of disaster. Many of the FSA operated programs are funded through the Commodity Credit Corporation (CCC), a government owned and operated corporation established in 1933.

USDA-Agricultural Research Service The Agricultural Research Service (ARS) is the principal in-house research agency of the U.S. Department of Agriculture (USDA). ARS conducts research to develop and transfer solutions to agricultural problems of high national priority. Two of the twenty-two ARS National Programs, Water Quality and Management and Soil Resource Management, are strongly committed to applied nonpoint source pollution research as part of their mission to increase understanding and develop solutions to protect the Nation's soil and water resources. In Texas, ARS is conducting ongoing research on nonpoint source related issues such as: land application of municipal and agricultural wastes; improved management of soil, water, nutrients, and chemicals in agricultural production systems; and enhanced simulation tools for water quality,

TCEQ/TSSWCB joint publication SFR-68/04 47 hydrology, and crop growth. ARS research, conducted by laboratories throughout the state, is often carried out in cooperation with universities, state research and extension centers, and private organizations.

USDA-Forest Service Congress established the Forest Service in 1905 to provide quality water and timber for the Nation's benefit. Main activities include (1) protection and management of natural resources on National Forest System lands, (2) research on all aspects of forestry, rangeland management, and forest resource utilization (3) community assistance and cooperation with State and local governments, forest industries, and private landowners to help protect and manage Non-Federal forest and associated range and watershed lands to improve conditions in rural areas. The Forest Service is also the largest forestry research organization in the world, and provides technical and financial assistance to state and private forestry agencies.

State Agencies

Texas State Soil and Water Conservation Board The Texas State Soil and Water Conservation Board (TSSWCB) is the lead agency in Texas for activity relating to abating agricultural and silvicultural nonpoint source pollution. As the lead agency, the TSSWCB is mandated to: 1) plan, implement, and manage programs and practices for abating agricultural and silvicultural nonpoint source pollution; 2) administer a Technical Assistance Program for Soil and Water Conservation Land Improvement Measures; and 3) administer a Cost- Share Assistance Program for Soil and Water Conservation Land Improvement Measures. The TSSWCB meets these mandates by working with local soil and water conservation districts to administer its TMDL Program, 319(h) Grant Program, Conservation Planning Programs (i.e. Water Quality Management Plan and Comprehensive Nutrient Management Plan Programs), NPS compliant resolution process, Poultry Initiative, and involvement in the implementation of the Coastal Management Plan.

Texas Commission on Environmental Quality The Texas Commission on Environmental Quality (TCEQ) strives to protect the state's human and natural resources consistent with sustainable economic development. The TCEQ implements many sections of the Texas Water Code, federal Clean Water Act, and Safe Drinking Water Act. The TCEQ develops water quality requirements designed to protect attainable uses and to maintain the quality of waters in the state. The TCEQ has a number of programs that address various aspects of nonpoint source pollution management through planning, the setting of standards,

48 TCEQ/TSSWCB joint publication SFR-68/04 data collection, assessment, targeting and prioritization, and implementation.

Texas Water Development Board The Texas Water Development Board (TWDB) is responsible for long-term water planning and financing water-related development for the state. Its duties include the preparation and update of the State Water Plan, collection and maintenance of water data, and administration of various funds designed to help finance state and local water-related projects.

Texas Parks and Wildlife Department The Texas Parks and Wildlife Department's (TPWD's) primary functions are to manage and conserve the natural and cultural resources of Texas and to provide hunting, fishing and outdoor recreation opportunities.

To this end, TPWD operates and maintains a system of public lands, including state parks, historic sites, fish hatcheries and wildlife management areas; monitors conserves and enhances the quality of public and private lands, rivers, streams, lakes, coastal marshes, bays, beaches, and Gulf waters; manages and regulates fishing, hunting and boating activities; assists public and private entities in providing outdoor recreational opportunities; conducts education and outreach events and programs; and cooperates with other governmental entities in these areas. TPWD's efforts focus on programs that affect habitat, in the belief that preservation and creation of appropriate habitat will result in the protection of fish, wildlife, and recreation.

Texas Agricultural Experiment Station The Texas Agricultural Experiment Station (TAES) is the official state agricultural research agency in Texas. It is administered by the Board of Regents of the Texas A&M University System. The TAES cooperates with other state and federal agencies and colleges and universities in planning and conducting agricultural research. Programs of the TAES are designed to provide the scientific base to develop the full agricultural potential of Texas and improve the utilization and conservation of natural resources.

Texas Department of Agriculture The Texas Department of Agriculture (TDA) is the State's lead regulatory agency for agricultural pesticide regulation. The Texas Pesticide and Herbicide Laws grant TDA the authority to enforce the provisions of the law pertaining to the registration, distribution, and use of all agricultural pesticides. TDA is responsible for licensing all agricultural pesticide applicators and the labeling, storage, sales, usage, and disposal of all pesticides. TDA also cooperates with other state agencies that have statutory pesticide responsibilities, such as the TCEQ, the Structural Pest

TCEQ/TSSWCB joint publication SFR-68/04 49 Control Board, and the DSHS. TDA is also responsible for the enforcement of federal pesticide laws under a cooperative agreement with the EPA.

Texas Institute for Applied Environmental Research The Texas Institute for Applied Environmental Research (TIAER) was established as part of the Texas A&M System in 1992. The first mandate in its enabling legislation is to conduct applied research on environmental issues that have public policy implications. The legislation also calls for TIAER to provide national leadership on emerging environmental policy and to provide a setting for environmental studies on the interface between government and the private sector. Establishing interdisciplinary programs or partnerships to develop and implement new policies, technologies, strategies, and relationships is another TIAER mandate.

The TIAER goal is to impact state and national environmental policy. A principal that is fundamental to this goal is that improvements in the environment are best accomplished not by simply conducting scientific research, but by using research results to formulate policy recommendations that will actually be implemented by government and other institutions. TIAER seeks to use cutting-edge strategies and technologies to assist developers and implementers of environmental policy. Partnerships with other universities and state agencies are integral aspects of Institute work. These partnerships build on the strengths of each entity to produce an effective, efficient program.

Texas Water Resources Institute The Texas Water Resources Institute is a unit of the Texas Agricultural Experiment Station and Texas Cooperative Extension. It is part of a national network of institutes created by the Water Resources Research Act of 1964. The Institute is funded by the United States Geological Survey and is affiliated with the National Institutes for Water Research.

The Texas Water Resources Institute serves as a focal point for water-related research at Texas universities, encouraging discussion of statewide issues through meetings and multi-university studies. The Institute links academic expertise with state and federal agencies, strengthening water research and education. Additionally, the Institute provides leadership for water resources programs through grant administration, pre-award services, project management, communications, and facilitation of interagency collaboration.

Texas Forest Service The Texas Forest Service (TFS), a member of the Texas A&M University System, provides statewide leadership and professional assistance to

50 TCEQ/TSSWCB joint publication SFR-68/04 assure that the state's forest, tree, and related natural resources are wisely used, nurtured, protected, and perpetuated for the benefit of all Texans.

Texas Cooperative Extension The Texas Cooperative Extension (TCE) is a partnership between the USDA, Texas A&M University, and County Commissioners Courts. The basic mission of the TCE is education and dissemination of information relating to agriculture, home economics/consumer sciences, community development, and 4-H/youth. County Extension Agents deliver most of the educational programs of the TCE. These county agents, supported by specialists based at College Station and 12 regional centers throughout Texas, provide technical information and respond to individual problems 1and questions, conduct educational meetings, and establish and evaluate demonstrations to show the benefits of using practices based on the latest scientific research. They also provide educational information through radio and television programs, newspapers, newsletters, and bulletins. Water quality and conservation is one of six major program issues being addressed by agents and specialists on an interdisciplinary basis.

Texas Department of Licensing and Regulation The Texas Department of Licensing and Regulation (TDLR) is the primary state agency responsible for the oversight of businesses, industries, general trades, and occupations that are regulated by the state and assigned to the department by the legislature. TDLR ensures public safety and welfare in many diverse areas. Issuing licenses, conducting inspections, investigating complaints, issuing penalties, setting rules and standards, and holding hearings, names just a few of the agency's activities. The TDLR activities as they relate to occupational certifications ensures that environmental professionals operate in compliance with federal and state laws and regulations.

Texas General Land Office The Texas General Land Office (GLO) is the state agency responsible for the management of state-owned public lands not specifically purchased by or deeded to other agencies. The GLO is a proprietary state agency. The GLO is also the state's lead agency for coordinating the Coastal Management Plan designed to help preserve public beach access, protect coastal wetlands and other coastal natural resources, and respond to beach erosion along the Texas coast.

Railroad Commission of Texas The Railroad Commission of Texas (RRC) is the state agency with primary regulatory jurisdiction over the oil and natural gas industry, pipeline transporters, natural gas utilities, rail safety matters, and surface mining operations. The main functions of the RRC are to protect the environment, protect public safety, protect the correlative rights of mineral

TCEQ/TSSWCB joint publication SFR-68/04 51 interest owners, prevent waste of natural resources, and assure fair and equitable utility rates in those industries over which it has been granted authority.

Texas Department of Transportation The Texas Department of Transportation (TxDOT) is the lead state agency for construction and maintenance of state roads, which includes responsibility for the management of road and highway nonpoint sources of pollution. The goal of TxDOT as it relates to nonpoint source pollution, is to prevent the degradation of receiving waters due to storm water runoff from highway operations. TxDOT has developed a comprehensive storm water management program aimed at achieving this goal.

Texas Department of State Health Services The Texas Department of State Health Services (DSHS) is the lead agency to protect, promote, and improve the health of the people of Texas. DSHS administers several programs that support public health and environmental programs. The Environmental Sciences Branch provides analytical chemistry laboratory support to the EPA Safe Drinking Water Program and analyzes fish and shellfish from Texas coastal waters, inland lakes, and rivers for organic chemicals and toxic metals. The Division for Regulatory Services-Seafood and Aquatic Life Group protects consumers of fish and shellfish from disease or other health hazards transmissible by these products produced in or imported into Texas. The Seafood and Aquatic Life Group also protects the recreational fishers from disease or contaminants found in fish and other aquatic species caught in Texas' lakes, rivers, bays or nearshore State waters.

Interagency Agreements Maximizing the utilization of local, state and federal resources is essential if limited resources are to be effective. Texas has implemented a variety of mechanisms to ensure and improve coordination among and between Federal, State, and local officials for addressing water quality. A list of some of the agreements and strategic partnerships is provided below.

52 TCEQ/TSSWCB joint publication SFR-68/04 Table 4.1 Federal, State, and Local Agreements to Facilitate Cooperation on NPS Issues Cooperative Entities Type of Agreement Purpose of Agreement TCEQ and TSSWCB Memorandum of Facilitate cooperation between the two Understanding primary Texas NPS control agencies in achieving program goals.

TCEQ and TSSWCB Memorandum of Sets for the cooperating responsibility and Agreement authority regarding development of total maximum daily loads (TMDLs).

TSSWCB and Texas A&M Memorandum of Establishes commitments to work together to University System Understanding accomplish statewide NPS pollution reduction goals with the state’s agricultural and silvicultural producers. TAES will conduct soil and water conservation and nonpoint source management demonstrations and related educational activities, and TAES will cooperate with TSSWCB and SWCDs to identify research needs relative to soil and water conservation and nonpoint source management.

TCEQ and RRC Memorandum of Clarifies the division of jurisdiction between Understanding TCEQ and RRC with regards to wastes generated in connection with oil and gas exploration, development, and production activities.

TCEQ and GLO Memorandum of Sets forth the mutual coordination of Understanding program responsibility and procedural mechanisms for the Galveston Bay Estuary Program to address threats arising from pollution, development, and overuse, and enhancing ecosystems-based management of Galveston Bay.

TCEQ with other state Memorandum of Establishes agreements with key state and agencies: TPWD, DSHS, Agreement federal partners to set priorities, achieve TWDB, Tx A&M water quality goals, and plan and implement University System watershed projects to protect and restore NPS-impacted water bodies.

USDA-NRCS with local Memorandum of Sets forth the cooperation for SWCDs to Soil and Water Agreement furnish technical assistance to farmers and Conservation Districts ranchers in the preparation of soil and water conservation plans.

TCEQ and TWDB Memorandum of Sets forth the cooperation, responsibility and Agreement authority regarding the development of TMDLs.

TCEQ and TDA Memorandum of Sets forth the cooperation, responsibility and Agreement authority regarding the development of TMDLs.

TCEQ and TAES, TCE Memorandum of Sets forth the cooperation, responsibility and and TFS Agreement authority regarding the development of TMDLs.

TCEQ/TSSWCB joint publication SFR-68/04 53 TSSWCB and USDA- Memorandum of Sets forth the responsibilities and activities Forest Service Understanding to be performed by each agency in carrying out the State Water Quality Management Plan and Nonpoint Source Management Program as related to activities on National Forest System Lands.

TPWD and TxDOT Memorandum of Provides a formal mechanism by which the Understanding TPWD may review TxDOT transportation projects, including those that have the potential to affect natural resources and to promote the mutually beneficial sharing of information which will assist TxDOT in making environmentally sound decisions.

TCEQ and U. S. Coast Memorandum of Outlines the responsibilities for the recovery Guard Agreement of abandoned sealed containers on Texas beaches for pollution prevention and response.

GLO and U.S. Coast Memorandum of Provides for agreement to cooperate and to Guard Agreement coordinate efforts in implementing and exercising their respective statutory and regulatory duties related to pollution prevention and response.

Stakeholder Involvement In order to achieve water quality goals, including those discussed in this Management Program, the State of Texas enlists the cooperation of affected entities, or stakeholders, to solicit input, assistance and cooperation in developing and implementing solutions. Within a particular watershed, stakeholders may include individuals and civic groups, farmers and ranchers, local industry, environmental organizations, wastewater dischargers, as well as local, state, and federal government entities.

Coordinated Monitoring The development of the annual coordinated monitoring schedule is an exceptional example of stakeholder involvement. Monitoring priorities and issues are discussed among state, federal, regional, and local governmental entities as well as other interested parties and the public. The implementation of coordinated statewide monitoring is a priority of the TCEQ and the Clean Rivers Program (CRP) to minimize duplication of effort, improve spatial coverage of monitoring sites, and improve consistency of parametric coverages (parametric coverages typically include field measurements, flow measurements, routine water chemistry, and fecal coliform analysis).

At least one meeting is held in each major river basin, hosted by the CRP planning agency, during the spring of each year. The purpose of the meeting is to develop a coordinated basin-wide monitoring schedule. All

54 TCEQ/TSSWCB joint publication SFR-68/04 water quality monitoring groups that collect Surface Water Quality Monitoring data and commit to comply with TCEQ requirements for collecting quality-assured data are invited to participate. New sites are added, existing sites may be relocated, and parametric coverages may be changed based on the discussions at the meetings.

The preliminary basin-wide monitoring schedules developed at the coordinated monitoring meetings are reviewed by the CRP planning agencies, CRP stakeholders, and TCEQ staff to ensure that proposed revisions to monitoring locations and parametric coverages are appropriate. After review, a statewide coordinated schedule is posted on the internet developed and maintained under contract by the Lower Colorado River Authority at: http://cms.lcra.org/

Stakeholder Groups

National Natural Resources Conservation Foundation The National Natural Resources Conservation Foundation (NNRCF) promotes innovative solutions to natural resource problems and conducts research and educational activities to support conservation on private land. The NNRCF is a private, nonprofit corporation. The foundation builds partnerships among agencies and agricultural, public, and private constituencies interested in promoting voluntary conservation on private lands.

Texas Forestry Association The Texas Forestry Association (TFA) is a tax-exempt, non-profit organization which serves as the voice of the forest industry in eastern Texas. Within the TFA, information and training are provided for both the logger and the landowner through the work of various committees. The TFA provides an excellent avenue for reaching those who own and manage forest resources and those employed in the forest industry. Members of TFA are committed to carrying out programs in water quality, education, and the continued production of forest resources.

Clean Rivers Program Stakeholder Workgroup The Stakeholder Workgroup meets annually to ensure the Clean Rivers Program is functioning in a manner that considers the needs of all stakeholders. Representatives from government, industry, business, agriculture, and environmental interest groups participate in the Workgroup. Surface water quality issues are discussed, and decisions are made through a consensus-based approach.

The Stakeholder Workgroup was originally formed solely as an advisory group for the Clean Rivers Program. However, in recent years the

TCEQ/TSSWCB joint publication SFR-68/04 55 Workgroup’s scope and membership has been expanded to include input on the focus, goals, and functionality of the Nonpoint Source Management Program, the Total Maximum Daily Load Program, and the Surface Water Quality Monitoring Program. The group also works with the TCEQ on setting priorities for addressing water quality problems related to both point and nonpoint sources.

Clean Rivers Program Basin Steering Committees CRP Basin Steering Committees meet at least annually in each of Texas' major river basins. The purpose of these meetings is for the CRP Planning Agency to present water quality issues for the basin and request input from the local citizens and stakeholders in identifying potential sources of pollution and setting local priorities. In addition, the meeting provides a way for state agency representatives to communicate statewide NPS goals to stakeholders at the local level. The CRP Planning Agency responsible for monitoring and assessing water quality for each basin plans and conducts the meeting. Basin Status Reports prepared by the CRP Planning Agencies outline recommended actions for nonpoint source pollution management and other water quality issues in each river basin.

Local Watershed Action Committees Throughout the Total Maximum Daily Load (TMDL) development process, stakeholder work groups or existing community forums are used to obtain public input toward project design, sampling, load allocations, and options for implementation measures. After a TMDL has been established for a particular water body, the TCEQ develops an implementation plan with the participation of local stakeholders, describing the voluntary and regulatory measures needed to achieve reduction of the pollutants addressed in the TMDL.

NPS Stakeholders Forum The TCEQ and the TSSWCB established a statewide stakeholder workgroup comprised of CRP Stakeholders and other state and local entities with an interest in NPS management. The NPS Stakeholders Forum provides TSSWCB and TCEQ an opportunity to seek input and feedback on the State’s NPS management programs and activities. The NPS Stakeholders Forum meets at least annually. The TSSWCB and TCEQ NPS and CRP programs coordinate meetings of this group as needed. The meetings provide an opportunity for the NPS program to provide information about NPS management and the 319 program to state and local government entities for implementation of the goals and milestones of the NPS Management Program.

56 TCEQ/TSSWCB joint publication SFR-68/04 Texas Watershed Protection Committee In 1997 the Texas Watershed Protection Committee (TWPC) was formed for the purpose of coordinating actions on numerous atrazine detects found in surface water bodies that were sources of public drinking water. The TWPC is informal in that its existence is not mandated by any state law or regulation; however, it meets an important need for coordinating responses to pesticide contamination of surface water. As well as coordinating general activities aimed at preventing contamination, the TWPC actively seeks and identifies opportunities to improve existing surface water quality programs and promotes coordination between agricultural and surface water related agencies. Response to pesticide contamination is coordinated through the TWPC. Information is provided to the TWPC upon detection of pesticide contamination in surface water for evaluation and recommendations. Response to pesticide contamination in surface water falls under the jurisdiction of a number of state agencies including the TSSWCB, TCEQ, and TDA.

Texas Groundwater Protection Committee The Texas Groundwater Protection Committee (TGPC) was formally created by the 71st Legislature in 1989. The TGPC was created to bridge gaps among existing state water and waste regulatory programs in order to focus protection on groundwater resources and to optimize water quality protection by improving coordination among agencies involved in groundwater activities. Texas Water Code sections 26.401 through 26.407 established the TGPC and outlined its powers, duties, and responsibilities. The TGPC is responsible for preparing the Texas Groundwater Protection Strategy, which provides guidelines for the prevention of contamination and for the conservation of groundwater and that provides for the coordination of the groundwater protection activities of the agencies represented on the committee.

The state's groundwater protection policy was adopted by the Legislature as part of the Act that created the TGPC. The policy sets out non-degradation of the state's groundwater resources as the goal for all state programs. The state's groundwater protection policy recognizes:

# the variability of the state's aquifers in their potential for beneficial use and susceptibility to contamination, # the importance of protecting and maintaining present and potentially usable groundwater supplies, # the need for keeping present and potential groundwater supplies reasonably free of contaminants for the protection of the environment and public health and welfare, and # the importance of existing and potential uses of groundwater supplies to the economic health of the state.

TCEQ/TSSWCB joint publication SFR-68/04 57 The TGPC actively attempts to identify opportunities to improve existing groundwater quality programs and promote coordination between agencies. The TGPC strives to identify areas where new or existing programs could be enhanced to provide additional needed protection.

Coastal Coordination Council The Coastal Coordination Council (Council) administers the Coastal Management Program (CMP). The Commissioner of the General Land Office chairs the Council. Other members of the Council include the chair, or a member designated by the chair, of the following agencies' Commissions: the Texas Parks and Wildlife Department (TPWD); the Texas Commission on Environmental Quality; the Railroad Commission of Texas; the Texas Water Development Board; the Texas Transportation Commission; the State Soil and Water Conservation Board; the director of the Texas A&M University Sea Grant Program serving as a non-voting member; and four gubernatorial appointees. The appointees consist of a local elected official who resides in the coastal area, a business owner in the coastal area, a resident from the coastal area, and a representative of agriculture.

The Council is charged with adopting uniform goals and policies to guide decision-making by all entities regulating or managing natural resource use within the Texas coastal area. The Council reviews significant actions taken or authorized by state agencies and subdivisions that may adversely affect coastal natural resources to determine their consistency with the CMP goals and policies. In addition, the Council oversees the CMP Grants Program and the Small Business and Individual Permitting Assistance Program.

Texas Alliance of Groundwater Districts The Texas Alliance of Groundwater Districts (TAGD), formerly the Texas Groundwater Conservation Districts Association, was formed on May 12, 1988, as a nonprofit §501©)(3) corporation. The TAGD was formed to further the purpose of groundwater conservation and protection activities. The TAGD provides a means of communication and exchange of information between individual districts regarding the day-to-day operation of local groundwater management. Members of TAGD are part of a network which provides valuable technical and operational experience. This often provides information that saves districts time and money. The TAGD maintains contact with members of the private sector and various elected, local, state, and federal officials, providing them with timely information on activities and issues relevant to groundwater management. Members of TAGD also serve on various local, state, and federal agency committees and subcommittees, providing input and information on behalf of the member district.

58 TCEQ/TSSWCB joint publication SFR-68/04 One of the primary intents of Chapter 36 of the Texas Water Code, the chapter empowering groundwater conservation districts, is for the districts to develop and carry out educational programs for their constituency. Many districts have developed educational programs directed toward water conservation, well-head protection and overall environmental awareness that has contributed to the mitigation of NPS pollution.

Soil and Water Conservation Districts There are currently 217 soil and water conservation districts (SWCDs) organized across the state. Each district is an independent political subdivision of state government that is governed by five directors elected by landowners in the district. Local SWCDs provide assistance to agricultural landowners or operators.

Various federal, state, and local agencies provide assistance to SWCDs. The TSSWCB was designed to organize and serve as the state-level administrative agency for local SWCDs. Through Memoranda of Understanding with the USDA-NRCS, local SWCDs are able to furnish technical assistance to farmers and ranchers in the preparation of a complete soil and water conservation plan to meet each land units's specific capabilities and needs.

Senate Bill 503 of the 73rd Texas Legislature created the Water Quality Management Plan Program authorizing the TSSWCB, through local SWCDs to provide agricultural and silvicultural producers with an opportunity to comply with state water quality laws through traditional, voluntary, incentive-based programs. Landowners and operators may request the development of a site-specific water quality management plan through local SWCDs. Plans include appropriate land treatment practices, production practices, and management and technology measures to achieve a level of pollution prevention or abatement consistent with state water quality standards.

SWCDs work to bring about the widespread understanding of the needs of soil and water conservation. In addition, they work to activate the efforts of public and private organizations and agencies into a united front to combat soil and water erosion and to enhance water quality and quantity in the state. It is the purpose of SWCDs to instill in the minds of local people that it is their individual responsibility to do the job of soil and water conservation.

Importance of Local Participation The 1987 amendment to the Clean Water Act was the first comprehensive attempt by the federal government to control nonpoint sources of pollution. Since that time, other state, federal and local programs have been created or expanded to protect water quality. Many local, regional, state, and federal agencies have specific responsibilities that are critical to

TCEQ/TSSWCB joint publication SFR-68/04 59 the restoration of NPS impacted waterbodies. Organizations, especially at the watershed level, can provide information about local concerns and infrastructure, and can help to implement and build support for pollution control measures necessary to restore water quality.

The table below presents an overview of some of the programs involved in implementing the State's Nonpoint Source Management Program by achieving the milestones and goals defined in this document. For more information about these programs, see chapter 5 for a detailed discussion. These programs are implemented by the agencies described above.

Table 4.2 Federal, State, and Local Programs and Activities for Assessment, Implementation and Education within the Texas Nonpoint Source Pollution Management Program

Program Lead Agency Program Type Funding Source NPS Grant Program TCEQ Assessment Federal TSSWCB Implementation Education

Clean Rivers Program (CRP) TCEQ Assessment Fees River Authorities Education Councils of Government

TMDL Implementation Plans TCEQ Assessment Federal TSSWCB Implementation State Education

Superfund Program TCEQ Implementation Federal State

Brownfields Program TCEQ Implementation Federal EPA State

Voluntary Cleanup Program TCEQ Implementation State Fees

Corrective Action Program TCEQ Implementation State

Leaking Petroleum Storage Tank TCEQ Implementation Federal Program State

Floodplain Management TCEQ Implementation State

Emergency Response Program TCEQ Implementation State RRC DSHS EPA

Coastal Oil Spill Prevention and GLO Implementation State Response U. S. Coast Guard

Kills and Spills Team TPWD Implementation State

60 TCEQ/TSSWCB joint publication SFR-68/04 401/404 Water Quality Corps Implementation Federal Certification TCEQ State RRC TPWD

Water Rights Permit Program TCEQ Implementation State

Clean Marina Initiative NOAA Implementation Federal Education

Clean Texas Marinas TCEQ Implementation Federal GLO Education State

Small Spill Prevention Program GLO Implementation State Education

Solid Waste Permitting TCEQ Implementation State Programs

Beneficial Use Sludge TCEQ Implementation State Permitting Program

Illegal Disposal Abatement TCEQ Implementation State Program Education

Texas Environmental TCEQ Implementation State Enforcement Task Force TPWD Education GLO RRC Atty General’s Office Governor’s Office

Citizen Complaints TCEQ Implementation State

Citizen Environmental Watch TCEQ Implementation State

Composting TCEQ Implementation Federal TSSWCB Education State Local

Used Oil Recycling TCEQ Implementation Fees

Household Hazardous Waste TCEQ Implementation State Management Program Education

Tire Disposal Program TCEQ Implementation Fees

City of San Antonio Waste City of San Antonio Implementation Local Management Programs Education

City of Austin Biosolids City of Austin Implementation Local Composting Fees

Municipal and Industrial TCEQ Implementation Fees Wastewater Permitting

On-Site Sewage Facility TCEQ Implementation Fees Program Local Authorities

TCEQ/TSSWCB joint publication SFR-68/04 61 Texas On-Site Wastewater Established by the Implementation State Treatment Research Center Legislature Education

City of El Paso Reclaimed City of El Paso Implementation Federal Water System State Local Fees

Brazos River Authority Brazos River Authority Implementation Local Technical Assistance Program

State Storm Water Permitting TCEQ Implementation State Programs EPA

Storm Water Management TxDOT Implementation State Guidelines

Trinity River Corridor City of Dallas Implementation Local

Dallas Floodway Extension City of Dallas Implementation Local Corps of Engineers

San Antonio River Tunnel City of San Antonio Implementation Local

Integrated Storm Water North Central Texas Local Management Program Council of Govts.

San Angelo Urban Nonpoint City of San Angelo Implementation Federal Source Abatement Program UCRA Education Local

Groundwater Pesticide EPA Implementation Federal Management Plan State

Pesticide Review Program EPA Implementation Federal

Agricultural Pesticide TDA Implementation State Regulation EPA TCEQ DSHS

Structural Pest Control Board SPCB Implementation State TDA EPA

Agriculture Resource Protection ARPA Implementation State Authority TDA TSSWCB TAES DSHS TCEQ SPCB

Texas Watershed Protection TWPC Implementation State Committee TCEQ Education TSSWCB TDA

Agricultural Waste Pesticide TCEQ Implementation State Collection Program TCE

62 TCEQ/TSSWCB joint publication SFR-68/04 Agricultural Waste Permitting TCEQ Implementation Federal TSSWCB State USDA-NRCS

TSSWCB Water Quality TSSWCB Implementation Federal Management Program Education State

Dairy Outreach Program TCEQ Implementation Federal Education State

Texas Brush Control Program TSSWCB Implementation State

Agricultural Loan Program TWDB Implementation State

Private Lands Enhancement TPWD Implementation State Program Education

Environmental Quality USDA-NRCS Implementation Federal Incentives Program Education

Watershed Program USDA-NRCS Implementation Federal

Conservation Technical USDA-NRCS Implementation Federal Assistance Program

Conservation Reserve Program Farm Services Agency Implementation Federal

Agricultural Research Service USDA Implementation Federal

TX Institute for Applied TIAER Assessment State Environmental Research Implementation

Texas Water Resource Institute TWRI Assessment State Implementation

Creekside Conservation LCRA Implementation Local Program Education

Resource Development Program TFS Implementation State

Forest Stewardship Program USDA Forest Service Implementation Federal

Forest Land Enhancement USDA Forest Service Implementation Federal Program Education

Site Visit Program TCEQ Implementation State

Small Towns Environmental TCEQ Implementation State Program

Texas Country Cleanup Program TCEQ Implementation State TCE TDA

Supplemental Environmental TCEQ Implementation Local Projects

Clean Texas Program TCEQ Implementation State Education

Texas Chemical Council Trade Association Implementation Local Education

TCEQ/TSSWCB joint publication SFR-68/04 63 Underground Injection Control TCEQ Implementation State

Source Water Assessment and TCEQ Assessment State Protection Program Implementation

Texas Groundwater Protection TCEQ Implementation Federal Committee RRC State DSHS TDA TSSWCB TAGD TAES BEG TDLR

Underground Storage Tank TCEQ Implementation State Installer Licensing

Texas Department of Licensing TDLR Implementation State and Regulation

Edwards Aquifer Protection TCEQ Implementation Federal Program State

Oil and Gas Well Plugging RRC Implementation Fees Program

Wetlands Reserve Program NRCS Implementation State

Texas Wetlands Conservation TPWD Implementation State Plan Education

Seagrass Conservation Plan TPWD Implementation State Education

Coastal Management Plan CCC- GLO Implementation Federal State

Wetland Conservation Plan for TPWD Implementation State State-Owned Coastal Wetlands GLO Education

Texas Wetlands Conservation TPWD Implementation Federal Plan

Local Governments Wetland GLO Education State Plan Implementation

Wetlands Assistance for TPWD Education State Landowners

Texas Coastal Management CMP-CCC Implementation Federal Program / Coordination Council Education State

Galveston Bay Estuary Program GBEP Implementation Federal Education State Local

Coastal Bend Bays & Estuaries CBBEP Implementation Federal Program Education State Local

64 TCEQ/TSSWCB joint publication SFR-68/04 Coastal Habitat Restoration TPWD Implementation State Program Education

BEACH Act GLO Assessment Federal Local

Gulf of Mexico Community- GCRP Implementation Federal Based Restoration Program State

Bilge Water Reclamation GLO Implementation Federal Program Education State Local

Coastal Texas 2020 GLO Implementation Federal State Local

Adopt -A-Beach Program GLO Implementation State Education Local

Border Pollution Prevention TCEQ Implementation Federal Initiative Education State Local

Border Environment NADB Implementation Federal Infrastructure Fund Local

International Boundary and IBWC Assessment Federal Water Commission Implementation Local Education

Economically Distressed Area TWDB Implementation Federal Program Education State Local

Colonias Initiatives Program SOS Implementation State Education

Border Recycles Day TCEQ Implementation State Education Local

Texas Watch Program EPA Assessment Federal TCEQ Education State Texas State Univ.

Colorado River Watch Program LCRA Assessment Federal Education Local

The Aquatic Experience UCRA Assessment Federal Implementation Local Education

The City of Denton Watershed City of Denton Assessment Federal Protection Program Education Local

Nonpoint Source Consumer TCEQ Education Federal Education State

Storm Drain Stenciling TCEQ Education State

Back Yard Composting and TCEQ Education Federal Xeriscaping State

TCEQ/TSSWCB joint publication SFR-68/04 65 Teaching Environmental TCEQ Education State Sciences

Environmental News You Can TCEQ Education State Use

Publications and Videos TCEQ Education Federal TSSWCB State

Environmental Hotlines EPA Education Federal TCEQ State Local

Small Spill Prevention GLO Education Fees

Agricultural Outreach Program TCE Education Federal State

On-Site Wastewater Treatment TAMU Education State Training Center Local

Don’t Mess With Texas TxDOT Education State

Keep Texas Beautiful TxDOT Education State

Texas Wildscapes Program TPWD Education State

Edwards Aquifer Authority Edwards Aquifer Education Local Authority

Barton Springs/Edwards Aquifer BSEACD Education Local Conservation District

Grow Green and Earth Camp City of Austin Education Local

WET in the City City of Houston Education Local

City of Fort Worth City of Fort Worth Education Local Environmental Education

City of San Antonio Curbside City of San Antonio Implementation Local Recycling Education

66 TCEQ/TSSWCB joint publication SFR-68/04 CHAPTER 5 ASSESSMENT In order to protect water quality, we must define and measure it, identify the types and sources of pollution, and implement plans to protect, maintain, and restore water quality. The state of Texas uses a dynamic, flexible cycle of activities to manage water quality. Steps in the cycle include:

! Standards and Planning: setting standards for surface water quality and revising or formulating monitoring plans;

! Monitoring: collecting data to monitor the condition of surface waters; ! Assessment and Targeting: assessing data to determine water quality status and to identify any impairments; ! Developing Strategies: for protecting, improving, or restoring water quality with pollutant source controls and practices; and ! Implementing Pollution Controls: for both point and non- point sources and evaluating progress, which may lead back to revising those plans or formulating new ones.

Implementing this cycle of activities involves coordination between many different entities and programs around the state of Texas. The development of implementation plans and the implementation of those plans will be discussed in Chapter 7.

Surface Water Texas has a large number of water bodies. Assessment There are 11,247 streams and rivers large enough to be named, with a total combined The major surface waters of length of 191,228 miles. However, only Texas have been divided into 40,194 miles of streams and rivers (21%) are classified water segments. A considered perennial, meaning that they have single river may consist of sustained flow throughout the year. Texas several classified segments. also has 9,993 inland reservoirs and lakes 10 acres or larger in size that together cover The term segment refers to a approximately 1,994,600 acres. Of those, defined, basic unit for 211 are major reservoirs which are greater assigning site-specific than 5,000 acre-feet each. Texas bays and standards, and is intended to estuaries cover approximately 2,393 square miles along a coastal shoreline that stretches have relatively common 624 miles in length. The Gulf of Mexico, biological, chemical, within Texas' jurisdiction covers hydrological, and physical approximately 3,879 square miles. In the characteristics. Segments will conterminous United States, Texas ranks also normally exhibit common first in total square miles covered by fresh water and saltwater with 4,959. reactions to external stresses such as discharges or

TCEQ/TSSWCB joint publication SFR-68/04 67 pollutants. The establishment of segments facilitates planning activities, issuance of permits, and allocation of grant funds necessary to implement various sections of the federal Clean Water Act. Texas currently recognizes 225 stream segments, 100 reservoir segments, and 48 estuary segments. The Gulf of Mexico is treated as one segment. Texas surface water quality standards and the assessment of water quality are based on these classified segments.

Protecting Surface Water Quality The TCEQ Water Quality Standards Team is responsible for establishing and revising standards to protect surface water quality. The Texas Surface Water Quality Standards (TSWQS), §30, Chapter 307 of the Texas Administrative Code, recognize the regional and geologic diversity of the state. Appropriate water uses are designated for each of the classified segments. Numerical and narrative criteria established in the TSWQS provide a basis for assessing water quality, evaluating use support, and managing point and nonpoint source loadings in Texas surface waters. The TSWQS are designed to:

# establish numerical and narrative criteria for water quality throughout the state; # provide a basis on which TCEQ regulatory programs can establish reasonable methods to implement and attain the state's standards.

Water quality standards are protective; that is, if one or more water quality standard is not being met in a classified segment, there is some possibility that water quality may be inadequate to meet the designated uses. For example, a water body fails to meet the dissolved oxygen standard established to support aquatic life use, yet no fish kills are observed. However, a decline in the variety or number of aquatic species and an increased probability of fish kills may exist.

Uses Four general categories of use are defined in the Texas Surface Water Quality Standards: aquatic life use, contact recreation, domestic water supply, and fish consumption.

Aquatic Life Use The standards associated with this use are designed to protect plant and animal species that live in and around the water. They establish optimal conditions for the support of aquatic life and define indicators used to measure whether these conditions are met. Some pollutants or conditions that may jeopardize this use include low levels of dissolved oxygen, toxic substances such as metals or pesticides, or excess turbidity.

68 TCEQ/TSSWCB joint publication SFR-68/04 Contact Recreation The standard associated with this use measures the level of certain bacteria in water to estimate the relative risk of swimming or other water sports involving direct contact with the water. It is possible to swim in water that does not meet this standard without becoming ill; however, the probability of becoming ill is higher than it would be if bacteria levels were lower.

Domestic Water Supply Domestic water supply consists of two subcategories: Public Water Supply and Aquifer Protection.

Public Water Supply. Standards associated with this use indicate whether water from a lake or river is suitable for use as a source for a public water supply system. Source water is treated before it is delivered to the tap and must meet a separate set of standards established for treated drinking water. Indicators used to measure the safety or usability of surface water bodies as a source for drinking water include the presence or absence of substances such as metals or pesticides. Concentrations of salts, such as sulfate or chloride, are also measured, since treatment to remove high levels of salts from drinking water is expensive.

Aquifer Protection. Segments designated for aquifer protection are capable of recharging the Edwards Aquifer. The principal purpose of this use designation is to protect the quality of water infiltrating and recharging the aquifer. The designation for aquifer protection applies only to those designated portions of the segments that are on the recharge zone, transition zone, or contributing zone of the Edwards Aquifer.

Fish Consumption The standards associated with this use are designed to protect the public from consuming fish or shellfish that may be contaminated by pollutants. The standards identify levels at which there is a significant risk that certain toxic substances dissolved in water may accumulate in the tissue of aquatic species. However, because pollutant concentrations in water do not always predict when toxic substances will accumulate in fish, the state also conducts tests on fish and shellfish tissue to determine if there is a risk to the public from consuming fish caught in state waters. The standards also specify bacterial levels in marine waters to assure that oysters or other shellfish that may accumulate bacteria from the water are safe for commercial harvest, sale, and consumption by the public.

Water Quality Indicators Specific indicators of water quality such as bacteria, dissolved solids, and organics are also described in the standards. Several different parameters may be measured to determine whether a water body meets its designated

TCEQ/TSSWCB joint publication SFR-68/04 69 uses. Some of the most common are listed here, with an explanation of why they are important to the health of a water body.

Fecal Coliform, E. Coli, and Enterococci Bacteria These bacteria are measured to determine the relative risk of swimming or other water sports. These bacteria are found in the waste of warm-blooded animals. Their presence may indicate that pathogens also in these wastes may be reaching a body of water from sources, such as, inadequately treated sewage, improperly managed animal waste from livestock, pets in urban areas, or failing septic systems.

Dissolved Oxygen The concentration of dissolved oxygen is a single, easy-to-measure characteristic of water that positively correlates with the abundance and diversity of aquatic life in a water body. A water body that can support diverse, abundant aquatic life is a good indication of high water quality. However, highly variable dissolved oxygen concentrations may indicate a related problem associated with an excess of nutrients in water. High concentrations of nutrients in water may stimulate excessive growth of vegetation which may result in very high dissolved oxygen concentrations during the day and very low dissolved oxygen concentrations at night. These conditions may have a negative impact on aquatic life use.

Dissolved Solids High levels of dissolved solids, such as chloride and sulfate, can cause water to be unusable, or simply too costly to treat for the drinking water supply use. Changes in dissolved solids concentrations also adversely affect the water quality for aquatic life use.

Metals Concentrations of metals can pose a threat to drinking water supplies and human health. Eating fish contaminated with metals can cause these toxic substances to accumulate in tissue, posing a risk to human health. Metals also pose a threat to livestock and aquatic life. Potentially dangerous levels of metals and other toxic substances are identified through chemical analysis of water, sediment, and fish tissue.

Organics Toxic substances from pesticides and industrial chemicals, called organics, pose the same concerns as metals. Polychlorinated biphenyls (PCBs), for example, are industrial chemicals that are toxic and probably carcinogenic. Although banned in the United States in 1977, PCBs remain in the environment, and they accumulate in fish and human tissues when consumed. Potentially dangerous levels of toxic substances are identified through chemical analysis of water, sediment, and fish tissue.

70 TCEQ/TSSWCB joint publication SFR-68/04 Fish Consumption Advisories and Closures The Texas Department of State Health Services (DSHS) conducts chemical testing of fish tissue to determine whether there is a risk to human health from consuming fish or shellfish caught in Texas streams, lakes, and bays. Fish seldom contain levels of contaminants high enough to cause an imminent threat to human health, even to someone who eats fish regularly. Risk increases for those persons who regularly consume larger fish and predatory fish from the same area of contaminated water over a long period of time. When a fish consumption advisory is issued, a person may legally take fish or shellfish from the water body under the advisory, but should limit how much fish he or she eats, and how often. When a fish consumption closure is issued, it is illegal to take fish from the water body.

Data Collection Better understanding the relationship between land and water starts with monitoring the condition of water quality. The mission of the TCEQ Surface Water Quality Monitoring (SWQM) program is to characterize the water quality of the ambient surface waters of the state.

Monitoring activities can be grouped into five categories: routine monitoring, systematic monitoring, targeted monitoring, permit support monitoring and effectiveness monitoring:

Routine monitoring is designed to assess the status and trends of overall water quality throughout the state, and for each river basin. Data are collected using a monitoring network of key sites on the major water bodies in each basin on a regular basis. Monitoring sites may also include smaller water bodies to support characterization of ecoregions and/or basin-specific conditions.

Systematic monitoring focuses on evaluating subwatersheds and unclassified water bodies. Its purpose is to investigate and detect areas of concern, and identify issues that require further study. It also includes monitoring at sites to check the status of water bodies (identify improvements or concerns). This monitoring strategy rotates resources around the river basin to gather information on water bodies that would not normally be included in the routine monitoring program.

Targeted monitoring is conducted on water bodies where there is reason to believe there is a threat or a concern for water quality, to establish the extent and degree of an impairment, or to determine the best strategy for restoring water quality. Sometimes called special studies, targeted monitoring activities usually involve intensive periods of data collection at sites where routine or systematic monitoring identified impacts, concerns, or impaired uses.

TCEQ/TSSWCB joint publication SFR-68/04 71 Permit support monitoring is used to address specific areas where additional information is need to determine appropriate limits for wastewater discharges. This may include studies to gather site-specific information for use in developing permits.

Effectiveness monitoring is conducted to evaluate whether management practices, regulatory measures, and watershed improvement and restoration plans are producing the desired results.

Monitoring Coordination The CRP plays a key role in the TCEQ’s yearly integration of these various monitoring needs into a coordinated monitoring schedule for the entire state. The schedule shows all surface water monitoring being conducted by the TCEQ or under its contracts or cooperative agreements for each planning year.

Planning and development of the coordinated monitoring schedule takes place from January through May preceding the state fiscal year for which the plan is developed. To support coordinated monitoring, the TCEQ has developed guidance for selecting sites and for sampling methods for routine, systematic, and targeted monitoring. The coordinated monitoring schedule is hosted by the Lower Colorado River Authority, a CRP Planning Agency, on its Web site at http://cms.lcra.org/.

Texas Commission on Environmental Quality Surface Water Quality Monitoring Program The TCEQ's Surface Water Quality Monitoring (SWQM) Program is coordinated by the Surface Water Quality Monitoring Team and by staff in the TCEQ's 16 regional offices. Routine monitoring and special studies are conducted by SWQM personnel.

Finished drinking water data is collected by the TCEQ’s Drinking Water Quality Program. Additional supporting information is provided by the Source Water Assessment and Protection Program (discussed in Chapt 5).

Clean Rivers Program The CRP is a collaboration of 15 regional water agencies with the TCEQ. It is a unique, water quality monitoring, assessment, and public outreach program that is funded by state fees assessed on the number and size of wastewater treatment plants and surface water right permittees that reside within each river basin. The CRP provides the opportunity to approach water quality issues at the local level through coordinated efforts among diverse agencies, various programs, and the public.

Cost-effective watershed management decisions must be based on scientifically valid and complete assessments of water quality conditions and contributing causes of impact. Water bodies should be selected upon

72 TCEQ/TSSWCB joint publication SFR-68/04 the importance of the resource, risk from pollution, and with input from the Steering Committees (discussed in Chapter 4). Monitoring activities include fixed monitoring, systematic monitoring, targeted monitoring, and special studies.

United States Geological Survey The United States Geological Survey (USGS) also conducts a large amount of monitoring statewide and much of the data are utilized by the TCEQ. The USGS surface water collection network in Texas is primarily established to monitor stream flow continuously at many permanent sites. Field measurements, routine water chemistry, and metals in water are also collected at many of the fixed sites. Sites are chosen to represent a mix of natural and human factors that influence water quality. Chemical variables are then related by the USGS to hydrologic conditions to interpret water-resource conditions and meet water quality management needs. Estimation of point and nonpoint source loadings, stormwater management, and chemical-contaminant controls are some of those needs.

Other Sources Additional data from other state and federal agencies, cities, and other monitoring groups can be assessed in the evaluation of water quality if the data meet clearly defined acceptance and time line criteria established by the TCEQ. Previous contributors of data of this type include the Texas Department of State Health Services (DSHS), Texas Parks and Wildlife Department (TPWD), Texas Institute for Applied Environmental Research (TIAER), and Texas Watch.

Assessing the Data The current condition of Texas surface water resources and the effectiveness of protection and restoration activities are evaluated by assessing the available data. The physical, chemical, and biological characteristics of aquatic systems are assessed in relation to human health concerns, ecological conditions, and designated uses. Water quality data may be used to:

# characterize existing conditions, # evaluate spatial and temporal trends, # determine water quality standards compliance, # identify emerging problems, and # evaluate the effectiveness of water quality control programs.

Water Quality Inventory The TCEQ evaluates the condition of the state's water bodies on a periodic basis as required by CWA§305(b). The results of this evaluation are contained within the Texas Water Quality Inventory and 303(d) List which is prepared by the TCEQ's SWQM team and submitted to the EPA for

TCEQ/TSSWCB joint publication SFR-68/04 73 approval. One of five categories is assigned to each parameter and area of a water body, known as an assessment unit, to provide more information to the public, EPA, and agency staff about water quality status, management plans, and management activities. When an assessment unit has multiple parameters, the highest category is assigned to the assessment unit. When a water body has multiple assessment units, an overall category is assigned to the entire water body. The table below summarizes the categorization of water bodies in Texas. Categories four and five represent the list of impaired water bodies as required by CWA§303(d).

Table 5.1 Categories of the Texas Water Quality Inventory and 303(d) List

Category 1 Attaining the water quality standard and no use is threatened.

Category 2 Attaining some of the designated uses; no use is threatened; and insufficient or no data and information are available to determine if the remaining uses are attained or threatened.

Category 3 Insufficient or no data and information to determine if any designated use is attained.

Category 4 Standard is not supported or is threatened forone or more designated uses but does not require the development of a TMDL.

Category 4a TMDL has been completed and approved by EPA.

Category 4b Other pollution control requirements are reasonably expected to result in the attainment of the water quality standard in the near future.

Category 4c Nonsupport of the water quality standard is not caused by a pollutant.

Category 5 Category 5 is the 303(d) list. The water body does not meet applicable water quality standards or is threatened for one or more designated uses by one or more pollutants.

Category 5a A TMDL is underway, scheduled, or will be scheduled.

Category 5b A review of the water quality standards will be conducted before a TMDL is scheduled.

Category 5c Additional data and information will be collected before a TMDL or review of the water quality standard is scheduled.

Nonpoint Source Assessment The CWA §319(a) assessment focuses only on those waters which have been identified as being degraded, at least in part, by nonpoint source pollution. Texas' CWA §319(a) assessment of impaired waters is based on the Texas Water Quality Inventory and 303(d) List. In order to address the most current priorities for Texas and have a NPS program based on the most current information, the latest state approved Texas Water Quality Inventory and 303(d) List will serve as the state's 319(a) assessment.

74 TCEQ/TSSWCB joint publication SFR-68/04 NPS-degraded surface waters appearing in the report will be targeted by the state for additional NPS monitoring and restoration activities.

With regards to CWA §319(h) grant funding, priority for assessment dollars is given to those water bodies that fall under categories 5a, 5b, and 5c of the Texas Water Quality Inventory and 303(d) List. Assessment dollars may also be used to fund development of TMDL Implementation Plans or Pollution Reduction Strategies for water bodies in categories 4a, 4b, and 4c. These plans are discussed in Chapter 6.

Basin Status Reports Each CRP partner agency collects information on potential sources of pollution throughout its planning area or river basin. This information is used to correlate water quality to the environmental factors that influence it, such as soils, climate, hydrology, wastewater treatment plans, urban runoff, and agricultural runoff. An annual basin status report, the Basin Highlights Report, is produced by each regional water agency, and provides an overview of water quality issues and the status of ongoing projects/tasks. A detailed and in-depth data analysis is provided for each basin in the Basin Summary Report once every five years. This report provides trend analysis, spatial analysis (correlating environmental factors to water quality), an explanation for why certain water quality issues exist, and recommendations for addressing persistent water quality problems. The CRP strives to report water quality data in a user-friendly format to inform the public. The information contained in these reports is utilized by the TCEQ in the development of the Texas Water Quality Inventory and 303(d) List, subsequent statewide rankings, and prioritization of management strategies.

Total Maximum Daily Loads (TMDLs) A TMDL, or Total Maximum Daily Load, is a tool for achieving water quality standards and is based on the relationship between pollution sources and in-stream water quality conditions. TMDLs are developed to provide an analytical basis for planning and implementing pollution controls, land management practices, and restoration projects needed to protect water quality. The TMDL establishes the allowable loadings or other quantifiable parameters for a water body and thereby provides the basis to establish water quality-based controls. These controls provide the pollution reduction necessary for a water body to meet water quality standards.

CWA§303(d) and its implementing regulations (40 CFR §130.7) require states to identify waters that do not or will not meet applicable water quality standards after the application of technology-based or other required controls, and to establish TMDLs for pollutants that are causing non-attainment of water quality standards. For listed waters, States must develop TMDLs allowing for seasonal variations and an appropriate

TCEQ/TSSWCB joint publication SFR-68/04 75 margin of safety. A TMDL is a quantitative assessment of water quality problems, contributing sources, and load reductions or control actions needed to restore and protect individual water bodies.

TMDLs address all significant stressors which cause water body use impairment, including: point sources (e.g., sewage treatment plant discharges), nonpoint sources (e.g., runoff from fields, streets, range, or forest land), and naturally occurring sources (e.g., runoff from undisturbed lands). A TMDL is the sum of the individual wasteload allocations for point sources, load allocations for nonpoint sources and natural background pollutants, and an appropriate margin of safety. TMDLs may address individual pollutants or groups of pollutants, as long as they clearly identify the links between the water body use impairment, the causes of the impairment, and the load reductions needed to remedy the impairment.

Public participation is an integral part of the TMDL process. Therefore, the TMDL process provides many opportunities for the public to participate. Listed below are a few of the ways the public can participate in the TMDL process:

# In most cases a watershed committee is established to provide local input on TMDL projects. The public is encouraged to work on these committees or attend these committee meetings. # TMDL meetings are open to the public. Public notices are provided for these meetings. These meetings provide an opportunity to make comments and get answers to questions. # The public is given a chance to review and provide comments on the development of the current CWA§303(d) list for the state. # Before the state adopts a TMDL, a formal public comment period is provided in which the draft TMDL is made available, a public comment hearing is conducted, and responses to all comments are published. # Resources are available to assist the public's participation in the TMDL process. The TCEQ website provides information about the TMDL program, the status of individual TMDL projects, and links to other TMDL-related websites. The TCEQ has also published printed materials such as Developing Total Maximum Daily Load Projects in Texas: A Guide for Lead Organizations, which provides valuable information on the TMDL process in Texas.

The development of TMDLs begins with the review of existing data and/or the collection of additional data related to water quality, point source discharge, precipitation, soils, geology, topography, and land use (construction, agriculture, mining, etc.) within the watershed. Next, models or other analytical methods are used to calculate pollutant loads and the water quality response of the receiving water. The appropriate

76 TCEQ/TSSWCB joint publication SFR-68/04 analytical method/model is selected based on the pollutants of concern, the amount of data available, and the type of water body. If a computer model is selected, data collected from the watershed may be used to calibrate and verify the model so that the computed values match those of known field data. The model can then be used to develop different scenarios, by first determining the amount of specific pollutants each source contributes, then calculating the amount each pollutant needs to be reduced, and finally specifying how the reduced pollutant load would be allocated among the different sources. In some cases, TMDLs can be based on readily available information and studies using simple analytical efforts to provide a basis for stressor assessment and implementation planning. In other cases, more complex, data intensive computer simulations are required.

Upon completion of data collection and analyses, a TMDL report is developed adopted by the state after a thorough public review and comment period. The state-adopted TMDL is submitted to EPA for review and approval. The TMDL Report consists of six component parts, each of which is presented and discussed below.

Problem Statement: The TMDL report includes an indication whether the segment is on the latest CWA§303(d) list and its priority, applicable water quality standards are identified, the pollutant or stressor of concern is identified, and the beneficial use impairment of concern is described. Historical water quality data from the impaired water body and its contributing watershed is presented and assessed. The TMDL report describes the characteristics of the water body such as drainage area, length, flow rates, depth, etc. The watershed is described including characterization of soil types, land uses, population, wildlife resources, and topography. The TMDL report includes a general description of the location of the impaired water body including information about the river basin, ecoregion, and political jurisdictions in which it is located.

Endpoint Identification: Numeric water quality target(s) for the TMDL are identified in the TMDL report, and the basis for target(s) as interpretation of water quality standards is documented. These targets identify the specific instream (and potentially watershed) goals or endpoints for the TMDL which equate to attainment of the water quality standard. In some cases, multiple indicators and associated numeric target values may be needed to interpret an individual water quality standard. In addition, some TMDLs may incorporate multiple numeric targets to account for seasonal differences in acceptable pollutant levels in a particular water body. In many cases where applicable standards are expressed in numeric terms, it is appropriate to set the numeric target equal to the numeric water quality standard.

In situations where applicable water quality standards are expressed in narrative terms, it is necessary to develop a quantitative interpretation of

TCEQ/TSSWCB joint publication SFR-68/04 77 narrative standards. Since a TMDL is an inherently quantitative analysis, it is necessary to determine appropriate quantitative indicators of the water quality problem of concern in order to calculate a TMDL. It is sometimes possible to supplement instream indicators and targets with watershed targets-- measures of conditions within the watershed which are directly associated with water bodies meeting their water quality standards for the pollutant(s) of concern.

Source Analysis: Point, nonpoint, and background sources of pollutants of concern are described in the TMDL report, including the magnitude and location of sources. The TMDL document demonstrates all sources have been considered. The TMDL document provides estimates of the amounts of pollutants entering the receiving water of concern or, in some cases, the amount of pollutant that is bioavailable based on historic loadings stored in the aquatic environment. These pollutant sources or causes of the problem are documented based on site-specific studies, literature reviews or other sources of information. Sources can be categorized in many ways, including but not limited to discharge source, land use category, ownership, pollutant production process (e.g. sedimentation processes), and/or tributary watershed areas. The source analysis discusses the data and methods used to estimate source contributions.

Linkage Between Pollutant Sources and Water Quality in the Receiving Water: The TMDL document describes the relationship between numeric target(s) and the identified pollutant sources, leading to an estimate of the total assimilative capacity (loading capacity) of the waterbody for the pollutant of concern. The loading capacity is the critical quantitative link between the applicable water quality standards (as interpreted through numeric targets) and the TMDL. Thus, a maximum allowable pollutant load is estimated to address the site-specific nature of the impairment. The loading capacity reflects the maximum amount of a pollutant that may be delivered to the water body and still achieve water quality standards. A number of different loading capacity approaches can be used as part of TMDLs.

The loading capacity section discusses the methods and data used to estimate loading capacity. A range of methods can be used from predictive water quality models to inferred linkages based on comparison of local reference conditions with existing conditions in the watershed of concern. In some cases, loading capacity may vary within the watershed of concern (e.g., toxics loading capacity may be higher in areas with high water mixing rates than in backwater areas with poor water exchange), and in different time periods (e.g. nutrient loading capacity may be lowest during high temperature summer low flow periods). The basis for spatial and temporal variations in loading capacity estimates is discussed.

Margin of Safety: A margin of safety is included in the TMDL report to account for uncertainty in the understanding of the relationship between

78 TCEQ/TSSWCB joint publication SFR-68/04 pollutant discharges and water quality impacts. The TMDL document describes an explicit and/or implicit margin of safety for each pollutant. An explicit margin of safety can be provided by reserving (not allocating) portion of the loading capacity identified for the water body for the pollutant of concern. An implicit margin of safety can be provided by making and documenting conservative assumptions used in the TMDL analysis. The TMDL report provides an explanation of the basis for margin of safety which shows why it is adequate to account for uncertainty in the TMDL. Where an implicit margin of safety is provided, the report includes a discussion of sources of uncertainty in the analysis and how individual analytical assumptions or other provisions adequately account for these sources of uncertainty.

Load Allocations: The TMDL report identifies the total allowed pollutant amount and its components: appropriate wasteload allocations for point sources; load allocations for nonpoint sources; load allocation for an appropriate margin of safety; and, natural background. Allocation of allowable loads or load reductions among different sources of concern are determined. These allocations are usually expressed as wasteload allocations to point sources and load allocations to nonpoint sources. Allocations can be expessed in terms of mass loads or other appropriate measures. The TMDL equals the sum of allocations and cannot exceed the loading capacity. Load allocations for nonpoint sources are generally expressed as specific allocations for "gross allotments" to nonpoint source discharger categories. Separate nonpoint source allocations are established for background loadings. Allocations may be based on a variety of technical, economic, and political factors. The methodology used to set allocations is discussed.

Monitoring the Results There are many different programs in place throughout the state that are responsible for conducting implementation activities. Upon implementing a best management practice (BMP) or other implementation activity it is necessary to determine the effectiveness of the activity. Data collected after implementation must be compared to data collected prior to implementation to determine effectiveness. These data may be historical, like that collected for a special study, or collected as part of the project tasks prior to implementation. In some cases, routine monitoring can be used to evaluate effectiveness. In other cases, it will be necessary to collect data in a specific project area to evaluate the effectiveness of the implementation activities. Certain types of BMPs or implementation activities will not show immediate results. Effectiveness and water quality improvements will be determined over time, and not immediately upon implementation. More about implementation activities will be discussed later in this document.

TCEQ/TSSWCB joint publication SFR-68/04 79 Groundwater Assessment Groundwater supplies about 58% of all water used by Texans for domestic, municipal, industrial, and agricultural purposes. Approximately 36% of the water used for municipal supplies, and 75% of the water used for agricultural purposes is obtained from groundwater sources. This groundwater is produced from aquifers, which are underground layers of rock with water stored in pore spaces, cracks or voids. Major aquifers are defined as producing large quantities of water in a comparatively large area of the state, whereas minor aquifers produce significant quantities of water within smaller geographic areas or small quantities in large geographic areas. Minor aquifers are very important as they may constitute the only significant source of water supply in some regions of the state.

Nine major aquifers and twenty-one minor aquifers have been delineated within the state. These major and minor aquifers underlie approximately 76% of the state's surface area. Other undifferentiated, local aquifers may represent the only source of groundwater where major or minor aquifers are absent. These local aquifers, which provide groundwater that is used for all purposes, vary in extent from very small to several hundred square miles.

Measuring Groundwater Quality The Texas Water Development Board (TWDB) is authorized by the Texas Water Code to conduct studies and map the state's water resources. The TWDB has identified the state's aquifers, and delineated the boundaries of major and minor aquifers based on yields and significance of aquifer production. These maps depict the extent of each aquifer, including where it is exposed at the surface, which is commonly where recharge occurs, as well as, the portion of the aquifer underground. For most aquifers, a Total Dissolved Solids (TDS) concentration of 3,000 milligrams per liter is used to mark the boundary of usable quality water when mapping aquifers. The boundary of the Edwards Aquifer, for mapping purposes, is defined by a TDS concentration of 1,000 milligrams per liter.

TDS are constituents in groundwater dissolved from the surrounding rock and are the basis for the Texas Groundwater Protection Committee's (TGPC) groundwater classification system.

Under this groundwater classification system, four classes are defined based on quality as determined by TDS concentration. Through classification, groundwater can be categorized, and protection or restoration decisions can be made according to the water quality present or potential use of the groundwater.

80 TCEQ/TSSWCB joint publication SFR-68/04 Table 5.2 TGPC Groundwater Classification System

CLASS QUALITY* EXAMPLES OF USE Fresh Zero to 1,000 Drinking and all other uses

Slightly Saline More than 1,000 to 3,000 Drinking (if freshwater is unavailable), livestock watering, irrigation, industrial, mineral extraction, oil and gas production

Moderately Saline More than 3,000 to 10,000 Potential/future drinking and limited livestock watering and irrigation (if fresh or slightly saline water is unavailable); industrial, mineral extraction, oil and gas production

Very Saline to Brine More than 10,000 Mineral extraction, oil and gas production

*Concentration range of total dissolved solids in milligrams per liter.

The state has developed surface water quality standards applicable to certain water bodies that are protective of groundwater affected by surface water. For the recharge zone of the Edwards Aquifer, the state has developed water quality protection measures that specify groundwater recharge as a "designated use" in the state's surface water quality standards. The state has not developed standards for pollutant discharge to groundwater, although, the legislatively mandated (TWC §26.401) goal of non-degradation of use guides the priorities of groundwater programs. However, comparison of measured values for constituents of concern in major and minor aquifers with TDS concentration of 3000 mg/L, or less, against adopted Safe Drinking Water Act (SDWA) Maximum Contaminant Levels (MCL's) provides an effective method of evaluating groundwater quality in aquifers for the intended use of drinking water.

Aquifer Vulnerability Since groundwater contamination can remain latent for a lengthy period of time, and since groundwater is difficult to clean up once it has become impacted, the majority of Texas groundwater programs focus on prevention of contamination, rather than remediation. This is true of point-source regulatory and permitting programs, as well as NPS related programs DRASTIC like the Pesticides in Groundwater Program D - Depth to water conducted under the Federal Insecticide, R - annual Recharge Fungicide and Rodenticide Act (FIFRA) by A - Aquifer media S - Soil media TCEQ. T - Topography I - vadose zone Impact Previous NPS assessments have contained an C - hydraulic aquifer vulnerability ranking system based on Conductivity the average DRASTIC index for the aquifers of Texas. This ranking system is used (Appendix D), because it is a reasonable method of determining the

TCEQ/TSSWCB joint publication SFR-68/04 81 relative vulnerability of aquifers to surface activities, and by extension, possible NPS contamination.

Data Collection The TWDB has the responsibility for collecting and maintaining an inventory of ambient groundwater conditions throughout the state. The TGPC relies upon ambient monitoring data from the TWDB for state groundwater quality information. The TWDB performs ambient groundwater monitoring on water wells in a particular number of Texas aquifers each year, so that all major and minor aquifers of the state are monitored approximately every five years. The TWDB maintains a database of ambient groundwater monitoring data for the state from over 51,000 water wells and is supplemented by data from the United States Geological Survey (USGS), the Bureau of Economic Geology (BEG), and the TCEQ. Also, many of the groundwater conservation districts throughout the state have well-developed monitoring programs that are primarily intended to monitor the volume of water in an aquifer, but also collect groundwater quality information. Data are maintained by the groundwater conservation district, and generally reported to the TWDB for inclusion in their ambient groundwater database.

Assessing the Data For the groundwater portion of the Texas Water Quality Inventory and 303(d) List, ambient groundwater quality data are drawn from the TWDB database. The number of wells reporting values for constituents of concern above the MCL, or between the Minimum Detection Level (MDL) and the MCL are determined, and these values are posted in a table for each aquifer, along with the total number of wells sampled in that aquifer.

The data are augmented by the data taken from the annual Joint Groundwater Monitoring and Contamination Report that lists groundwater contamination cases of the regulatory programs of the TCEQ, Railroad Commission of Texas (RRC) and groundwater conservation districts. TCEQ reports data for groundwater contamination related to industrial and hazardous waste sites, municipal solid waste sites, leaking underground and above ground storage tanks, public drinking water supplies, wastewater disposal facilities, and other occurrences of contamination that may not be directly linked to a specific source or program. The RRC collects and reports data regarding groundwater contamination that may be related to oil and gas well drilling and production activities, transmission (pipeline) spills, and surface mining operations. Groundwater conservation districts typically monitor only those groundwater contamination cases that are of specific interest to the individual district, or those that do not fall under the regulatory umbrella of other agencies. In 1996, the Texas Groundwater Protection Committee (TGPC) began the groundwater quality assessment process, through a partnership of the

82 TCEQ/TSSWCB joint publication SFR-68/04 TCEQ and the TWD, two of its member agencies. Assessment of all thirty aquifers was completed in 2002. Each aquifer in the 2002 Water Quality Inventory and 303(d) List is represented with a map showing the locations of water wells sampled and nitrate analyses exceeding EPA drinking water standards. Tables are included that show the parameters assessed against EPA drinking water standards, as well as, summaries of the sources and types of groundwater contamination at regulated facilities. This information is compiled from data contained in the Joint Groundwater Monitoring and Contamination Report.

Nitrate is readily soluble and mobile in water, and is considered one of the major human health concerns in drinking water. Coincidentally, nitrate concentration is an indicator of NPS pollution in groundwater, because it can move readily through the soil and vadose zone, entering aquifers by means of percolation. The vadose zone is the stratigraphic region between the soil surface and the water table, or the unsaturated zone. Nitrate in surface water indicates the potential for groundwater contamination.

Since no water quality standards have been designated for groundwater, an assessment standard of degradation or impairment with respect to use must be defined here. For the purposes of the NPS assessment, any measurements of groundwater quality taken from the aquifers listed in the Texas Water Quality Inventory and 303d List that exceed the Maximum Contaminant Levels (MCL) for nitrate in drinking water, are considered to be an indicator of either nonpoint source degradation or impairment, with respect to existing or potential use.

Constituents of concern that are above the Minimum Detection Level (MDL), but below the MCL, should be watched carefully over several report cycles. An increase in the number of detections of a constituent can signal a growing problem, even though the MCL has not been exceeded. Groundwater that indicates degradation with respect to existing or potential use will be targeted by the state for additional NPS monitoring and restoration activities.

The ranking for priority waterbodies that appear in Table B.2 are averaged and do not reflect the intrinsic vulnerability of outcrop areas and/or known areas where recharge is occurring. For this reason, spatial examination of contaminant distribution is vital to any true assessment of aquifer quality or vulnerability prediction.

Table B.2 ranks the Seymour, Edwards - Balcones Fault Zone in the San Antonio area, and Edwards - Balcones Fault Zone in the Austin area, as aquifers having "high" vulnerability rankings. The northern extent of the Ogallala, and Cenezoic Pecos Alluvium received "low" or low "medium" rankings, and the Hueco-Mesilla Bolsons rank "low" in the DRASTIC based aquifer vulnerability ranking scheme. The Joint Groundwater Monitoring and Contamination Reports document a number of significant

TCEQ/TSSWCB joint publication SFR-68/04 83 impacts to the usable groundwater zone of the Bolsons, and related investigations indicate a high potential for NPS impacts.

Upon further examination of the data from the Texas Water Quality Inventory and 303d List, it becomes readily apparent that constituent values exceeding the MCL occur predominantly in the "outcrop" portions of any aquifer with "outcrop" (unconfined) and "downdip" (confined) areas, or in the completely unconfined aquifers like the Ogallala, Seymour, and Cenezoic Pecos Alluvium. These "outcrop" areas of aquifers are more vulnerable to NPS impacts.

A spatial context reveals that a disproportionate number of high nitrate values occur in the Rio Grande Valley area of the aquifer. Therefore, this portion of the Gulf Coast aquifer must be labeled as impacted by NPS pollution.

Sampling sites exceeding an MCL for a given constituent will also be targeted. These would include the Lipan, Seymour, Marathon, Bone Spring-Victorio Peak, Edwards-Trinity (High Plains), Blaine, Ogallala, and Cenezoic Pecos Alluvium aquifers.

Future water quality inventories will contain more specific groundwater quality assessments for aquifers. This will allow the focus to be more narrow in determination of potential NPS impacts. The values for nitrate and other constituents in all reports may be revisited in the case of a change in the MCL values, as occurred with the 2003 EPA arsenic evaluation.

Monitoring the Results The Texas Groundwater Protection Committee (TGPC), through the Texas Groundwater Protection Strategy, has commissioned the development of a new statewide groundwater monitoring program that will better evaluate the effectiveness of regulatory programs in preventing impacts from both point sources and nonpoint sources. Future activities of the TPGC, and of its member agencies, may be guided by the results of the new monitoring program.

84 TCEQ/TSSWCB joint publication SFR-68/04 CHAPTER 6 IMPLEMENTATION Nonpoint source pollution management makes use of both regulatory and non-regulatory programs. Regulatory programs establish rules for certain activities in order to prevent harm to the environment resulting from these activities. The rules often require notification and reporting to a regulatory authority when the activity is engaged in, and specific prior authorization for the activity, such as registration, permitting, or certification. Regulatory activities also include inspections to determine whether rules are being complied with, as well as pursuit of apparent violations through investigations, enforcement activities, and litigation.

Non-regulatory programs do not establish or enforce environmental protection rules. Non-regulatory programs are voluntary. Regulation of everyday practices which individuals can use to control some nonpoint sources of pollution is impractical. In these cases, Texas encourages voluntary compliance through education and outreach. In addition, the size and complexity of the problem, low public awareness, and the lack of rigorous scientific definition of NPS problems make regulation difficult. Without regulation, a coordinated effort from the highest levels of government down to the citizens must occur to have an impact and reduce nonpoint source pollution.

The Texas Commission on Environmental Quality ( TCEQ) is designated by law as the lead state agency for water quality in Texas. The Texas State Soil and Water Conservation Board (TSSWCB) also plays an important role as the lead agency in the state for the management of agricultural and silvicultural (forestry) nonpoint source runoff. Local, regional, state, and federal agencies have specific responsibilities that are critical to the restoration and protection of polluted water bodies. Non-government organizations, especially at the watershed level, provide information about local concerns and infrastructure, and help build support for the kind of pollution controls necessary to restore water quality.

This chapter describes ongoing programs throughout the state which address NPS pollution. The programs are conducted by the agencies described in Chapter 4. This chapter is divided into the following types of NPS management issues:

# Surface Water Plans # Groundwater Plans # Remediation of Contaminated Sites # Emergency Response and Disaster Recovery # Hydromodification # Marinas and Recreational Boating # Solid and Hazardous Waste Management

TCEQ/TSSWCB joint publication SFR-68/04 85 # Wastewater Management # Storm Water Management # Pesticide Management # Agricultural Management # Silvicultural Management # Pollution Prevention # Protection for Drinking Water Sources # Aquifer Protection # Wetlands Protection # Coastal Programs # Border Programs

Surface Water Plans An important tool in managing nonpoint source pollution is the development of implementation plans. Once the sources or causes of pollution have been identified through the development of TMDLs or special studies (described in Chapter 5), an implementation plan must be developed. Implementation plans describe the management measures necessary to achieve the pollutant reductions. Management measures incorporate both nonregulatory and regulatory mechanisms. These management measures may include permit effluent limits and recommendations, nonpoint source pollution management practices, stream standard revisions, special projects, pollution prevention, public education, and watershed-specific rule recommendations.

Implementation plans may include both control actions and management measures. Control actions are point source pollution reduction strategies like the construction of centralized wastewater treatment facilities. Management measures are nonpoint source pollution reduction strategies which are the focus of this document. The best management measures for each individual watershed are developed in cooperation with regional and local stakeholders.

There are two types of plans developed in the State of Texas, TMDL Implementation Plans and plans developed at the local level called Watershed Protection Plans.

Both types of implementation plans describe implementation activities, the schedule for implementing them, and the authority for the regulatory measures. It also provides reasonable assurance that the voluntary practices will be undertaken and identifies partners who may perform these tasks. For instance, the plan may identify funds needed to implement voluntary actions. The plan also includes the measurable results that will be achieved, along with a follow-up monitoring plan to determine its

86 TCEQ/TSSWCB joint publication SFR-68/04 success. Interim results are evaluated to assess progress toward the goal of the plan.

Even after plans are fully implemented, it is difficult to accurately predict how long it will take for improvements to occur in the water body, or how much improvement will be seen. For this reason, there is a schedule for phasing in implementation activities, especially those that address nonpoint sources of pollution. Less expensive, time-tested activities are implemented first, and their affects are assessed. If the water quality goal of the plan is not yet achieved, then another round of activities is implemented. Through this adaptive management approach, the water body is continually reassessed, and adjustments are made in the implementation activities as needed to attain the water quality goal of the plan.

The following elements will be addressed in plans implemented through the CWA §319(h) Grant Program as required by EPA Guidance:

# a. An identification of the causes and sources or groups of similar sources that will need to be controlled to achieve the load reductions estimated in the TMDL. # b. An estimate of the load reductions expected for the management measures described in the implementation plan. # c. A description of the NPS management measures that will need to be implemented to achieve the load reductions estimated in the implementation plan, and an identification of the critical areas in which those measures will be needed to implement the plan. # d. An estimate of the amounts of technical and financial assistance needed, associated costs, and/or the sources and authorities that will be relied upon, to implement the plan. # e. An information/education component that will be used to enhance public understanding of the project and encourage early and continued participation in selecting, designing, and implementing the NPS management measures that will be implemented. # f. A schedule for implementing the NPS management measures identified in the plan. # g. A description of interim, measurable milestones for determining whether NPS management measures or other control actions are being implemented. # h. A set of criteria that can be used to determine whether loading reductions are being achieved over time and substantial progress is being made towards attaining water quality standards and, if not, the criteria for determining whether the TMDL needs to be revised.

TCEQ/TSSWCB joint publication SFR-68/04 87 # i. A monitoring component to evaluate the effectiveness of the implementation efforts over time, measured against the criteria established in the plan.

TMDL Implementation Plans Chapter 5 explains how Total Maximum Daily Loads (TMDLs) serve as part of the assessment process to identify sources and quantities of pollutant loadings that are preventing a water body from meeting water quality standards. After a TMDL is completed, an implementation plan is developed that describes the management measures necessary to achieve the pollutant reductions identified in the TMDL. The ultimate goal of TMDL Implementation Plans is the attainment of the water quality standard, but additional, interim results may be evaluated to assess progress toward that goal as described above. The development of TMDL Implementation Plans and implementation of NPS management measures defined in these plans is a priority for CWA §319(h) funding (described in Chapter 2).

Watershed Protection Plans Watershed Protection Plans, are also developed at the local level to address water quality issues. Watershed Protection Plans are often based on special studies conducted to gather more data in certain areas where problems are known to exist but more intense monitoring is necessary to determine the source of the problem.

Watershed Protection Plans are developed by river authorities, cities, or other local government entities to determine how to best solve the water quality problems of that area and to define the implementation activities needed to attain or maintain water quality standards. Priority for CWA §319(h) funding (described in Chapter 2) is provided to develop and implement these plans.

Water Quality Trading The concept of water quality trading has often been discussed as a way to increase the efficiency of TMDL and Watershed Protection Plan implementation and/or provide more flexibility for sources required to achieve extreme load reductions. In the context of TMDL and Watershed Protection Plan implementation, “water quality trading” refers to theoretical trading of pollutant allocations among local or regional sources, and generally does not mean physical transfers of actual effluent discharge. Arranging pollutant trades amongst watershed sources typically would require that some entity tracks the trades and keeps the account balanced to remain within the planned load allocations. The accounting entity may also need to mediate legal agreements, or disagreements, between trading partners.

88 TCEQ/TSSWCB joint publication SFR-68/04 Action with regard to water quality trading studies or plans will depend largely on the initiative of others, and the TCEQ and TSSWCB cannot stipulate when or if such efforts will occur. However, the TCEQ and TSSWCB will attempt to cooperate with such efforts in a timely and helpful manner. The development of a water quality trading program is optional. Any such effort that uses CWA §319 grant funding will have the tracking/accounting assurance stipulated in the grant stipulations.

Groundwater Plans The Texas Groundwater Protection Committee strives to improve or identify areas where new or existing programs could be enhanced to provide additional protection for groundwater resources. The committee actively seeks to improve existing groundwater programs and promotes coordination among agencies and Groundwater Conservation Districts.

Joint Groundwater Monitoring and Contamination Report The TGPC uses many tools to verify pollutant and contamination sources and develop plans to address the sources. The Joint Groundwater Monitoring and Contamination Report is essential to this process. The report is a compilation of all known groundwater contamination cases in the state and their enforcement status. In general, once groundwater contamination has been confirmed through regulatory compliance monitoring, the case will follow a generic sequence of actions until the investigation concludes no further action is necessary. The sequence of actions to verify pollutant sources and develop plans based on this report generally consists of confirmation of the contamination, an investigation to study the extent, composition, and circumstances of the contamination, and the planning of corrective action measures based on the investigation.

Groundwater Protection Strategy There are no specific programs that routinely examine the quality of water being consumed by Texans utilizing private/domestic wells, the segment of Texas' population most likely to be impacted by NPS pollution of groundwater. Surveys of the groundwater quality of private wells in Texas are rare; however, studies that have been conducted by various agencies have indicated that both man-made and naturally occurring contaminants - (eg fecal coliform, nitrate, radioactive nuclides, pesticides and pesticide degradation byproducts, arsenic, and other heavy metals) have been found in some domestic wells at levels that exceed health-based maximum contaminant levels (based upon a lifetime exposure to the constituent). The TGPC has prepared the new Texas Groundwater Protection Strategy (AS-188, February 2003) that details actions to be taken to remedy this situation and address other aspects of NPS pollution.

TCEQ/TSSWCB joint publication SFR-68/04 89 The state's groundwater protection efforts are implemented through three types of groundwater program activities: groundwater protection, groundwater remediation, and groundwater conservation.

Protection. Groundwater protection is the first programmatic component that defines the state's efforts. TWC§26.401 sets out nondegradation of the state's groundwater resources as the goal for all state programs and asserts that groundwater be kept reasonably free of contaminants that interfere with the present and potential uses of groundwater.

Remediation. The second programmatic component of the state's efforts is groundwater remediation. Once contamination has occurred, the goal of remediation programs is to restore the quality of groundwater if feasible. The remediation of groundwater contamination is accomplished through the implementation of corrective action plans developed as a result of the Joint Groundwater Contamination Report, monitoring of the effectiveness of corrective action measures, and ultimately, the completion of the corrective action measures.

Conservation. Another component of groundwater programs is conservation. Groundwater Conservation Districts are the state's preferred method of managing groundwater resources. Groundwater Conservation Districts have the authority to adopt and enforce rules, require well permits, monitor groundwater quality and quantity, and provide public education. These activities are useful in assisting with the implementation of the Districts' management plans described above.

Groundwater Conservation Districts The legislature has stressed the importance and responsibility of groundwater conservation districts in developing and implementing comprehensive management plans to conserve and protect groundwater resources. Wastewater reuse, desalination, well spacing regulations, brush control, and other strategies are featured in the plans.

This chapter, and the following two chapters, represents the toolbox of programs in place throughout the state which attempt to achieve the goals defined in this management plan through implementation of the defined milestones. The implementation programs and measures described in the plan work together to manage nonpoint source pollution in the State of Texas and are often defined through planning to achieve specific water quality goals.

Remediation of Contaminated Sites Environmental contamination can occur in many ways. Some examples include, unreported spills of hazardous materials, undetected leaks from pipes or other malfunctioning industrial equipment, improper disposal of byproducts of industrial processes, abandoned municipal solid waste

90 TCEQ/TSSWCB joint publication SFR-68/04 landfills, and abandoned, inactive industrial sites. If not remedied, ground and surface water contamination may occur which can pose environmental and human health problems. Below is a discussion of several state programs in place which address remediation of contaminated sites.

Superfund Program The state Superfund program's mission is to remediate abandoned or inactive sites within the state that pose an unacceptable risk to public health and safety or the environment, but which do not qualify for action under the federal Superfund program. The state Superfund program is administered by the TCEQ.

The TCEQ manages or provides management assistance to the U.S. Environmental Protection Agency (EPA) with regard to the Superfund remediation process, after the site is identified as being eligible for listing on either the state Superfund registry or the federal National Priorities List. The TCEQ ensures that all Superfund activities are completed in a timely and efficient manner, and in accordance with all applicable state and federal laws and rules.

Brownfields Program In Texas, many former industrial properties lie dormant or underutilized due to liability associated with real or perceived contamination. These properties are broadly referred to as brownfields. The TCEQ, in close partnership with the EPA and other federal, state, and local agencies, facilitates cleanup, transferability, and revitalization of brownfields. This is accomplished through the development of regulatory, tax, and technical assistance tools. In addition, the TCEQ is available at no cost to local governments to provide technical advice, education, and project partnering for brownfields redevelopment projects.

Voluntary Cleanup Programs The Texas Voluntary Cleanup Program (VCP) provides administrative, technical, and legal incentives to encourage the cleanup of contaminated sites in Texas. Non-responsible parties, including future lenders and landowners, receive protection from liability to the state of Texas for cleanup of sites under the VCP. Therefore, constraints for completing real estate transactions at those sites are eliminated. Also under the VCP, site cleanups follow a streamlined approach to reduce future human and environmental risk to safe levels. As a result, many unused or under used properties may be restored and become economically productive and beneficial to the community.

In addition, the RRC has a Voluntary Cleanup Program, which oversees the remediation of oil and gas related pollution and provides an incentive to remediate the pollution through a release of liability to the state in

TCEQ/TSSWCB joint publication SFR-68/04 91 exchange for a successful cleanup. Applicants to the program may not have caused or contributed to the pollution.

Corrective Action Program The mission of the industrial and hazardous waste corrective action program is to oversee the cleanup of sites with soil and groundwater contamination from industrial and municipal hazardous and industrial non-hazardous wastes. This program is administered by the TCEQ. The goal of this program is to assure that the public is not exposed to hazardous levels of chemicals by requiring mitigation, and the removal of contamination to levels protective of human health and the environment.

The RRC is responsible for plugging and cleanup of abandoned wells and sites. The RRC oversees cleanup by responsible parties of pollution associated with oil and gas activities under RRC jurisdiction. Funding for the RRC’s program comes from regulatory fees, permit fees, and bond fees paid by the oil and gas industry. Cleanup and prioritization of sites is based on protection of public health, public safety, and the environment.

Leaking Petroleum Storage Tank Program The TCEQ is responsible for administering the leaking petroleum storage tank (LPST) program. The program mission is to oversee the cleanup of spills from regulated storage tanks by recording and evaluating all reported incidents of releases of petroleum and other hazardous substances from underground and above-ground storage tanks. The program goal is to assure that the public is not exposed to hazardous levels of contamination by requiring the removal of contamination from LPSTs to levels protective of human health and the environment.

Any entity performing or coordinating regulated LPST corrective action services must be licensed by the TCEQ, as an LPST corrective action specialist. Any individual who supervises any corrective action required on a LPST site but is not a qualified professional engineer must be registered as an LPST corrective action project manager. Corrective action services include measures to determine and report the extent of a release in progress, attempts to halt and prevent future releases of regulated substances, cleanup of surface and subsurface contamination on site, site closures, post-remediation monitoring, or any other actions reasonably necessary to protect public health and preserve environmental safety.

Emergency Response and Disaster Recovery Nonpoint source pollution can occur as a result of natural disasters or spills of hazardous materials. Emergency response to these incidents can reduce the amount of impact pollutants from these activities present to the environment.

92 TCEQ/TSSWCB joint publication SFR-68/04 Severe storms can cause loss of vegetation, severe erosion, and runoff of contaminants, all of which can impact water quality. Clean-up efforts following severe storms often create large quantities of waste materials, which place additional pressures on the environment.

Spills on land are considered an emergency, because chemicals or other hazardous materials can enter nearby water resources and pose a threat to the environment and public health. Transportation and storage of hazardous materials increases the risk of the occurrence of spills. Some of the programs in the state of Texas that are responsible for response to spills and recovery from natural and manmade disasters are discussed below.

Floodplain Management Development in some Texas communities has raised the elevation of portions of the floodplain, increased drainage over impervious surfaces, channeled runoff away from new growth areas, and caused other physical changes to the environment. These changes can contribute to the severity of flooding events, and result in further damage to the environment.

The TCEQ serves as the state floodplain coordinator and implements the National Flood Insurance Program (NFIP) in Texas. As part of this program, the TCEQ provides guidance, support, and training to floodplain administrators to become participants in the NFIP. TCEQ staff visit communities throughout the state to provide planning, assistance, and information to community officials, and help coordinate disaster response to severe floods.

The Texas Water Code authorizes cities and counties in the state to adopt ordinances and court orders to create comprehensive floodplain management programs designed to protect public health, safety, and the general welfare of its citizens. To participate in the NFIP, a community must adopt and enforce a floodplain management ordinance which prevents new development from increasing the flood threat and protect new and existing buildings from anticipated flood events.

Local floodplain management programs are responsible for reviewing all construction plans and conducting inspections of approved projects to assure conformance with NFIP regulations. NFIP regulations ensure that construction methods and materials will minimize future flood damage and impacts to the environment from floods. Best management practices are required in floodplain areas to provide for water conveyance, and reduce runoff volumes associated with development. Examples of a few BMPs used include swales, detention and retention ponds, and infiltration basins.

TCEQ/TSSWCB joint publication SFR-68/04 93 Emergency Response Program The TCEQ Emergency Response team is on call 24-hours a day, year-round for response to oil and hazardous substance spills, emergencies, and human-caused disasters. The TCEQ responds to incidents such as, midnight dumping of abandoned drums, the breakup of the space shuttle Columbia in the skies over central and east Texas, and natural disasters.

The TCEQ collaborates with the EPA, the Coast Guard, other state agencies, counties, cities, local hazardous material teams, fire departments, law enforcement, and corporate response units. TCEQ staff lead response efforts when appropriate and provide planning or support.

The TCEQ assesses health and environmental risks in conjunction with the Texas Department of State Health Services (DSHS), the Railroad Commission of Texas (RRC), the Texas Parks and Wildlife Department (TPWD), Texas General Land Office (GLO) or other experts as necessary. DSHS identifies communities where people may be exposed to hazardous substances in the environment, assess a site's hazards, and recommends actions that need to be taken to protect human health. The RRC is responsible for response and clean-up of inland oil and gas related spills. TPWD is responsible for assessing impacts of spills to fish and wildlife. GLO responds to coastal oil spills.

Some of the services the TCEQ offers in response to spills and other pollution related emergencies include:

# assisting water supply officials providing drinking water and making systems operational; evaluating water quality; assisting individuals in maintaining private water or sewer systems; and assessing damages to public drinking water systems; # providing information and aid to the State Emergency Management Council on matters of flood-hazard areas, floodplain management, flood hydrology, engineering, dam safety, reservoir operation, water rights and uses, water quality, and hazardous waste management; # making available the services of specialists (floodplain management, hydrology, meteorology, groundwater geology, water quality, dam safety, wastewater treatment, water rights and uses, solid waste management including hazardous waste and radioactive waste, and emergency response) that may be of assistance during a disaster; # providing spill response maps, as well as maps relating to flood-hazard areas;

94 TCEQ/TSSWCB joint publication SFR-68/04 # providing TCEQ data, including data from neighboring states and Mexico, needed for dealing with a disaster that transcends the boundaries of Texas; # providing support for post-emergency weather and damage assessment; # providing technical assistance to local governments in the physical siting of disposal facilities for debris including municipal wastes whenever a disaster generates excessive amounts of waste; # providing cleanup funding as appropriate from funds under the TCEQ's statutory authorities; and # providing contracting resources for cleanups.

To the extent possible, TCEQ ensures that the individuals or entities responsible for spills bear the cost of clean-up activities. Violators who intentionally or knowingly allow an unauthorized discharge of pollutants that causes or threatens to cause water pollution may be prosecuted. Failure to report a spill is also cause for prosecution.

Coastal Oil Spill Prevention and Response The Oil Spill Prevention and Response Act of 1991 (OSPRA) designated the GLO as the lead state agency for preventing and responding to oil spills in the marine environment. A two-cent-per-barrel fee on crude oil loaded or off-loaded in Texas supports funding for the GLO's response efforts. To ensure rapid response, field offices are located along the Texas coast. In preparation for spills, the program has pre-staged response equipment in sensitive and geographically advantageous locations. The GLO's Oil Spill Prevention and Response (OSPR) program functions include deploying state-owned response equipment, designating responsible parties, coordinating spill response strategies, investigating the spill causes, and conducting follow-ups to ensure that appropriate corrective actions are identified and implemented. The program maintains a substantial inventory of response equipment.

The OSPR program maintains an active outreach effort, visiting schools, associations, and interest groups. The outreach program emphasizes the environmental impacts of small, chronic spills. Pollution prevention methods are highlighted in every presentation. In addition, the OSPR sponsors the Clean Gulf Conference and Exhibition annually to bring experts from government and industry together to discuss the latest developments in oil spill technology and the issues facing both responders and industry.

The OSPR program has also completed construction of four bilge water reception facilities along the coast. The Oily Bilge Water Reception Facility Program deters disposal of bilge water containing oil directly into surface water by providing operators of pleasure and commercial boats

TCEQ/TSSWCB joint publication SFR-68/04 95 with disposal facilities. In addition, the GLO has increased its presence with additional boat and harbor patrols. The OSPR program maintains a comprehensive, unannounced oil spill drill and audit program designed to measure the readiness level of all sectors of the oil handling community: deep draft vessels, pipelines, and shore-based facilities. The OSPR program is one of only a few state programs in the nation that funds oil spill prevention and response-related research. The Shoreline Environment Research Facility (SERF) enables oil spill researchers to conduct biological and chemical experiments in nine tanks that are capable of simulating a variety of coastal environments. The American Petroleum Institute has conducted two of the first "field conditions" dispersant experiments at the SERF facility, and works with program personnel to perfect response strategies for maritime applications.

The Texas Automated Buoy System (TABS) was developed to assist in predicting the movement of oil in offshore environments. Nine offshore buoys transmit real time ocean current data, which is then fed into computer trajectory models to produce a predicted pattern of oil movement.

To increase spill preparedness and streamline the OSPR program, the On-Line Vessel database was created to enable vessel operators to register response and preparedness information electronically, rather than submit hard copy plans.

The Texas Oil Spill Planning and Response Toolkit , produced by the OSPR program, with assistance from the Coast Guard, is the most comprehensive oil spill preparedness tool available. The toolkits are comprised of sensitivity maps, local knowledge guides, forms, and Area Contingency Plans for all of Texas. The program publishes the toolkit as both a downloadable program and CDRom. The toolkit is updated annually and is widely distributed free of charge throughout the Gulf Coast.

Kills and Spills Team The Texas Parks and Wildlife Department (TPWD) has assembled a Kills and Spills Team (KAST) comprised of biologists and team members headquartered in and assigned to five regions across Texas. The KAST assumes four key responsibilities: 1) respond to fish and wildlife kills and pollution incidents, including oil and hazardous material spills; 2) minimize environmental degradation resulting from pollution incidents and fish and wildlife kills; 3) obtain compensation, repair, and restoration for environmental damage; and, 4) act as a technical resource with respect to relationships between water quality, habitat, and living organisms.

The majority of incidents the KAST team responds to are fish kills. Natural causes responsible for fish kills include extreme weather temperatures, bacteria and disease, and toxic algal blooms. The actions of

96 TCEQ/TSSWCB joint publication SFR-68/04 humans can result in fish and wildlife kills through the introduction of toxic chemicals, pesticides, fertilizers, and contaminated storm water runoff. Low dissolved oxygen concentration is another cause of fish kills. Low dissolved oxygen concentrations may be natural or ma-induced. Low dissolved oxygen can result from large amounts of plant life depleting oxygen levels during the night. Other causes of low dissolved oxygen include hot, still days, dams, and dead end canals. A fish or wildlife kill is physical evidence that something is wrong. The sooner it is reported, the sooner it can be investigated and remedied.

A fish or wildlife kill is physical evidence that something is wrong. The sooner it is reported, the sooner it can be investigated and remedied. Immediately after a kill or spill is reported, an investigation begins to determine the source of a spill or the cause(s) of a kill. Though differences exist between investigating fish and wildlife kills and spills, the need for prompt response and accurate analysis applies in either case. Crucial details can be lost in a short amount of time. In addition, factors that may seem insignificant such as weather, vegetation, algal blooms, water chemistry, water flow, and pollution, can have serious impacts to an ecosystem when they change rapidly. Therefore, TPWD biologists must pay close attention to details, follow proper sampling procedures, and keep valid records. For large pollution events, TPWD biologists often work together with other state and local authorities.

Often in the case of a kill or spill, a responsible party is identified as having caused the incident. The responsible party may be asked to make restitution for the ecological damages. Restitution may consist of a monetary payment for the value of fish or wildlife killed, or may be some project that restores value to the ecosystem.

Hydromodification Hydromodification is defined by EPA as the alteration of the hydrologic characteristics of surface waters. Hydromodification may cause degradation of water resources. Three general types of hydromodification contribute to nonpoint source pollution:

Channel modification. Channel modification describes river and stream channel engineering undertaken for the purpose of flood control, navigation, drainage improvement, and reduction of channel migration potential. Activities such as straightening, widening, deepening, or relocating existing stream channels fall into this category. This term also refers to the excavation of borrow pits, canals, underwater mining, or other practices that change the depth, width, or location of waterways or bay formations in coastal areas. Channelization and channel modification activities can diminish suitability of instream and streamside habitat for fish and wildlife. They can also result in reduced flushing, lowered dissolved oxygen levels, saltwater intrusion, loss of streamside vegetation, accelerated discharge of pollutants, and changed physical and chemical

TCEQ/TSSWCB joint publication SFR-68/04 97 characteristics of bottom sediments in surface waters. In addition, hardening of banks along waterways can increase the movement of NPS pollutants from the upper reaches of watersheds into downstream or coastal waters.

Dams. Dams are defined as constructed impoundments that are either (1) 25 feet or more in height and greater than 15 acre-feet in capacity, or (2) 6 feet or more in height and greater than 50 acre-feet in capacity. Dams can adversely impact the quality of the surface waters and habitat in the stream or river where they are located. A variety of impacts can result from the siting, construction, and operation of these facilities. Construction activities from dams can cause increased turbidity and sedimentation in the waterway resulting from vegetation removal, soil disturbance, and soil rutting. The operation of dams can also generate a variety of types of nonpoint source pollution in surface waters. Controlled releases can change the timing and quantity of freshwater inputs into coastal waters, reduce downstream flushing, and create sediment deposition downstream of the dam. Dam releases can result in erosion of the streambed and scouring of the channel below the dam. Finally, reservoir releases can alter water temperature and lower dissolved oxygen levels in downstream waterbodies.

Streambank erosion. Streambank erosion refers to the loss of land along streams and rivers. The force of water flowing in a river or stream causes erosion. Eroded material can be carried downstream and deposited in the channel bottom or in point bars located along bends in the waterway. These deposits can have adverse impacts on the creation and maintenance of riparian habitat. Excessively high sediment loads can smother submerged aquatic vegetation, cover shellfish beds and tidal flats, fill in riffle pools, and contribute to increased levels of turbidity and nutrients.

The State of Texas achieves protection of water resources from hydromodification activities through a mixture of management measures. Below are examples of some of the programs that implement these measures.

Clean Water Act §401/404 Water Quality Certification CWA§401 provides for the protection of the state's surface water resources by ensuring that federal discharge permits are consistent with the Texas Surface Water Quality Standards. Under CWA§401, states are given the authority to review federally permitted or licensed activities that may result in a discharge of pollutants to waters of the U.S., such as the discharge of dredge or fill material. CWA§401 is a cooperative federal/state program that gives states authority to review federal activities in or affecting state waters and reflects the state's role at the forefront in administering water quality programs.

98 TCEQ/TSSWCB joint publication SFR-68/04 Only those activities that require a federal permit are subject to state review for §401 certification. However, any federally authorized activity which may result in a discharge is subject to CWA§401 certification. An important type of permit subject to CWA§401 certification is the U.S. Army Corps of Engineers (Corps) CWA§404 permit for discharges into wetlands or other navigable waters.

Before issuing a federal permit in Texas, the permitting agency must receive, from TCEQ or RRC, certification , conditional certification, or waiver stating that the discharge will not violate the Texas Surface Water Quality Standards. If the state denies certification, the federal permit is also denied. The TCEQ is responsible for certifying most federal permits, except for federal permits related to oil and gas production, which are certified by the Railroad Commission of Texas (RRC). The RRC certified permit activities include dredging an access channel to conduct drilling or production operations in a critical area; construction of a drilling pad or installation of a production platform in a critical area; or construction, operation, or maintenance of a crude oil or natural gas pipeline facility in waters of the state. The Texas Parks and Wildlife Department participates in the review of CWA§404 permits and CWA§401 wetland certifications to determine effects on fish and wildlife, and wetland habitats.

The CWA§401 certification program also plays an important role protecting coastal resources under the Texas Coastal Management Program (CMP). The CMP is designed to accomplish the goals set by the state legislature for coastal resource protection and to meet specific requirements for an approved plan under the federal Coastal Zone Management Act (CZMA). Certain activities, such as discharges authorized by CWA§404 permits, must be consistent with the state CMP when they occur within the coastal zone boundary. CWA§404 permits often involve impacts to coastal wetlands. Efforts to avoid and/or minimize adverse impacts to wetlands are taken to retain the important functions these water bodies provide for wildlife and aquatic habitat.

Water Rights Permit Review Water flowing in Texas' creeks, rivers, and bays is public property; however, the State of Texas confers on individuals and organizations the right to pump water from a stream, creek, pond, or lake or to impound water in a lake or pond, under the authority of Chapter 11 of the Texas Water Code. With a few exceptions, surface waters may be used only with explicit permission of the state, granted in the form of water rights. Water rights projects have the potential to cause, amplify, or exacerbate nonpoint source problems through flow modification, dam construction, sediment load alteration, loss of wetlands, and removal of riparian vegetation.

Each application for a water rights permit is reviewed for administrative and technical requirements by the TCEQ to evaluate its impact on other water rights, bays and estuaries, conservation, water availability, public

TCEQ/TSSWCB joint publication SFR-68/04 99 welfare, etc. TCEQ assesses the effects that the issuance of a water rights permit will have on existing instream uses including, water quality, fish and wildlife habitat, recreation, and freshwater inflows to bays and estuaries. In addition, Texas Parks and Wildlife Department reviews water rights applications, and is required by law to provide recommendations for permit conditions, mitigation, and schedules of flow or releases to protect fish and wildlife resources (Parks and Wildlife Code 12.024).

Factors that the TCEQ evaluates when performing an assessment of a water rights permit include the perennial nature of the stream, aquatic life use and biological integrity of the stream, water quality issues, presence of species of concern, and recreational uses. In addition to setting streamflow restrictions, mitigation may be recommended for altered, inundated, or destroyed terrestrial or riparian wetland habitats. The results of these assessments are incorporated into limitations and/or special conditions attached to water rights permits in order to protect the environmental integrity of the impacted stream reach.

Marinas and Recreational Boating Marinas and boating activities can be sources of nonpoint source pollution. Texas has over 350 coastal and inland marinas statewide encompassing slips and storage for more than 57,000 boats. Marinas, if not sited and constructed properly, can destroy wetlands, aquatic habitat and submerged aquatic vegetation, and can also restrict or alter water flows. Improper siting and construction can also lead to decreased dissolved oxygen levels and increases in pollutant concentrations. Activities that occur at marinas can create sources of nonpoint pollution including petroleum hydrocarbons such as fuel and oil. These substances can enter surface water directly from spills during refueling, may be present in bilge discharge, or can be transported in storm water runoff from these facilities. Other potential pollutants include copper and tin which are used in antifoulants used to prevent fouling of the submerged portions of ships, and iron and chrome which are contained in boats themselves. These substances may enter the water during boat cleaning.

Recreational boating can also degrade water quality and destroy aquatic habitat. Sewage, waste from fish cleaning, and food waste discharged from boats, either accidental or intentional, can lower dissolved oxygen levels, increase nutrients and impact aquatic life. In addition, discharges of sewage can elevate fecal coliform bacteria to levels that are unsafe for swimming and fishing. Some of the programs in place to address the nonpoint source problems resulting from marinas and recreational boating activities are discussed below.

The Clean Marina Initiative The Clean Marina Initiative is a voluntary, incentive-based program promoted by the National Oceanic and Atmospheric Administration

100 TCEQ/TSSWCB joint publication SFR-68/04 (NOAA) and others that encourages marina operators and recreational boaters to protect coastal water quality by engaging in environmentally sound operating and maintenance procedures. NOAA is jointly responsible for administering the Coastal Nonpoint Control Program with EPA, and plays an important role in protecting coastal waters from polluted runoff. The Coastal Nonpoint Program establishes a consistent set of management measures for all coastal states to use in controlling nonpoint source pollution. Management measures are designed to prevent or reduce runoff from a variety of sources, including marinas.

NOAA recognizes that the Clean Marina Initiative can serve a valuable role in protecting coastal waters from nonpoint source pollution and has promoted the program as a way for states to meet many of the marina management measure requirements under the Coastal Nonpoint Program. As a result, the Coastal Nonpoint Program has been responsible for driving the development of most of the state Clean Marina Programs existing today and developing a national interest in the initiative. NOAA continues to support the Clean Marina Initiative through targeted grant funding to states developing Clean Marina Programs.

The Clean Texas Marinas Program The Clean Texas Marinas Program is a proactive partnership designed to encourage marinas, boatyards and boaters to use simple, innovative solutions to keep Texas coastal and inland water resources clean. The basic goal of the program is pollution prevention by increasing awareness of environmental laws, rules, and jurisdictions, and increasing the number of designated Texas Clean Marinas. To be designated as a Texas Clean Marina and be recognized for environmental stewardship, marina owners are asked to identify opportunities and implement best management practices to control pollution associated with:

# Vessel maintenance and repair # Petroleum storage and transfer # Sewage disposal # Solid, liquid and hazardous wastes # Stormwater runoff # Facilities management The program also offers information, guidance, and technical assistance to marina operators, local governments, and recreational boaters on best management practices (BMP's) that can be used to prevent or reduce pollution. The Clean Texas Marinas Program was developed by the Texas Sea Grant College Program in partnership with the GLO, TCEQ, Marina Association of Texas, the Marina Advisory Board, and others.

TCEQ/TSSWCB joint publication SFR-68/04 101 Solid and Hazardous Waste Management Many county unincorporated areas in the state do not have organized waste collection services. Illegal dump sites are generally easily accessible to vehicles, somewhat hidden from view, and are perceived to be a no-man's land where dumping is permissible without costs. Approximately 70% of these sites are located in drainage swales or in creeks, resacas, or arroyos. Irrigation canals are also subjected to illegal dumping.

Environmental risks associated with illegal dumping and burning of solid waste include: surface and groundwater contamination; impact to wildlife and aquatic habitat; impact on endangered or threatened plants, animals, and species; and air pollution from open burning, especially in areas of concentrated population. Leachate from illegal dumping sites can contaminate water supplies, as can ash with concentrated contaminants created during illegal burning. Burn sites are often buried, creating potential for future water contamination.

Over one-fifth of the trash going to landfills in Texas is made up of yard trimming and vegetative food material. These materials can be used, instead of being wasted, as an organic, environmentally-friendly substitute for home chemical fertilizers. Practices by homeowners, such as the use of mulching lawnmowers and home composting, can reduce the amount of yard waste entering landfills. Manure from animal waste and sludge from human waste can also be used in this way. Private enterprise can make use of these materials to produce compost on the commercial level.

Another NPS contributor associated with waste management is the improper disposal of hazardous waste. Hazardous waste comes from industry, manufacturing, and households. Hazardous waste comes in many different shapes and forms. Chemical, medical, and furniture processing are some examples of processes that produce hazardous waste. Household products that contain corrosive, toxic, ignitable, or reactive ingredients such as paints, cleaners, oils, batteries, and pesticides are also hazardous wastes that contribute to NPS pollution. Oversided containers for household products can contribute to NPS due to overuse to get rid of the product, storage which can be unsafe, and improper disposal.

Hazardous and solid wastes, if not disposed of properly, can pollute the environment and pose a threat to human health. The State of Texas has several programs in place to address hazardous and solid waste management.

State Solid Waste Permitting Programs With a few exceptions, the TCEQ uses permitting to regulate the storage, transport, processing, and disposal of solid waste in Texas to prevent nonpoint source releases to the environment. TCEQ rules require that solid waste be processed and disposed of only in authorized facilities.

102 TCEQ/TSSWCB joint publication SFR-68/04 The TCEQ randomly audits a portion of waste stream notifications in order to ensure proper classification and coding of waste in Texas. Hazardous waste is defined as any solid waste listed as hazardous or possesses one or more hazardous characteristics as defined in federal waste regulations. Industrial waste is waste that results from or is incidental to operations of industry, manufacturing, mining, or agriculture. Under the definition of a waste, certain materials recycled in certain ways are excluded from being considered waste while others are not.

Facilities that aggregate, process, and return to use source-separated, non-putrescible recyclable materials from the municipal solid waste stream are exempt from permitting or registration requirements. All other recycling facilities must be authorized by the TCEQ.

The TCEQ certifies Municipal Solid Waste (MSW) technicians. The operating permits of most MSW facilities, including landfills, transfer stations, processing facilities, and recycling and resource recovery facilities, require the presence of a certified MSW technician. The responsibilities of an MSW technician include the proper screening, handling, transportation, collection, storage, and disposal of municipal solid waste.

The Beneficial Use Sludge Permitting Program Sewage sludge, also known as biosolids, must be properly processed, transported, and used or disposed of in order to prevent adverse environmental and public health impacts. Sludge is the material that remains after bacteria has digested the human waste from municipal water and wastewater treatment plants. Sludge can also originate from septic tanks, chemical toilets, grease and grit traps.

Because of the nutrient and soil-conditioning characteristics of most biosolids, local governments are encouraged to consider beneficial land application or composting of sludge. An activity to land-apply Class B biosolids for a beneficial use must be authorized by the TCEQ. An activity to land apply Class A biosolids (e.g. compost) for beneficial use does not require authorization by TCEQ. Beneficial use is defined as the land application of treated municipal sludge at or below the agronomic needs of a cover crop or the use of water treatment sludge as a soil amendment.

Because some municipal wastewater treatment plants also receive industrial wastewater, sewage sludge can contain pesticides and chemicals along with human waste. A permit is required for most activities that involve the processing, transportation, beneficial use, or disposal of sludge. If a sludge is not of domestic origin, it is regulated as either a municipal solid waste or an industrial solid waste.

TCEQ/TSSWCB joint publication SFR-68/04 103 The Illegal Disposal Abatement Program To successfully address illegal dumping problems, communities must develop long-term comprehensive solutions. The TCEQ has developed a model approach for use in developing solutions for illegal dumping and other municipal solid waste problems. This model approach focuses on developing and maintaining a program that includes the following four components:

# Garbage collection services. Provide residents with convenient and affordable ways to dispose of their garbage, such as citizen collection stations for rural communities. # Public awareness campaigns. Increase public awareness on the health and safety hazards of illegal dumping and available legal options for garbage disposal. # Cleanup of existing dumps. Clean up illegal dump sites to discourage other dumpers, who are attracted to these existing sites, and to improve the community's awareness of the problem. # Enforcement. Increase the cost of illegal dumping through increased enforcement and more severe punishments for offenders.

The TCEQ has an extensive outreach campaign to address the issue of illegal dumping. The TCEQ also provides funding to Councils of Government (COGs) through the Regional Solid Waste Grant program. Funds for the grant program are generated by state fees on Municipal Solid Waste (MSW) disposed of at landfills. The COGs use the funds to develop an inventory of closed MSW landfills; conduct regional coordination and planning activities; provide technical assistance and informational programs pertaining to solid waste management; serve as central point of contact for solid waste management outreach, education, and training programs; maintain a regional solid waste management plan; and administer pass-through grant programs to provide funding for regional and local MSW projects.

Texas Environmental Enforcement Task Force Intentional damage to the environment is a serious threat to the public's health and safety. In many cases, offenders favor rural areas or low-income neighborhoods for environmental crimes such as illegal dumping. The most common environmental crimes involve the dumping of various pollutants like septic waste, household garbage, used motor oil, auto batteries and barrels of hazardous waste.

Texas is a national leader in the investigating and prosecuting of environmental crime. This distinction is a direct result of the formation of the Texas Environmental Enforcement Task Force. The task force's sole

104 TCEQ/TSSWCB joint publication SFR-68/04 responsibility is to combat environmental crime, both directly and by informing and training Texas peace officers.

Each year TCEQ dedicates a week to educating Texas about environmental damage caused by dumping and other illegal pollution. Activities during the week include educational forums with community groups and law enforcement, a traveling exhibit on preventing environmental crime, police officer training, and a ceremony recognizing environmental crime fighters. Training sessions for police officers cover state and federal environmental statutes and emphasize the differences between criminal and civil cases. Primary instruction includes evidence collection and the use of scientific and technical expertise. Officers are led through re-enactments of illegal discharges and the execution of a search warrant.

The TCEQ heads up the Texas Environmental Enforcement Task Force with TPWD, Attorney General's Office, GLO, RRC, and the Governor's Office. While operating as a task force, these state agencies coordinate with various U.S. Attorney's Offices, the EPA, and the FBI. Task force membership has expanded to include a dozen more state, federal, and local entities. The task force meets bimonthly to review referrals for investigations. Tips come from many sources: employees at the offending company, business competitors, or task force members who come across leads. If the environmental task force adopts a case, each member agency appoints an investigator and the group consults with prosecutors to determine whether the case is better suited for state or federal courts. The participating agencies collaborate in conducting searches, taking and analyzing samples, and performing other functions necessary to support criminal investigations and prosecutions.

Citizen Complaints Responding to complaints from the general public about alleged environmental violations is an important part of TCEQ's regional office responsibilities. Each complaint is assigned a priority status to ensure that staff respond to the most environmentally serious complaints first. TCEQ has established procedures by which staff will investigate complaints once the most appropriate course of action is determined. An investigation may take the form of an on-site inspection or sampling.

Complaints are categorized as follows:

# conditions relating to air quality such as odor, dust, and smoke # conditions that create a potential to pollute the water or land # alleged violations of TCEQ permits or rules # smoking vehicles # spills

TCEQ/TSSWCB joint publication SFR-68/04 105 # other environmental concerns

Matters not within TCEQ jurisdiction will be referred to the appropriate state agency. The TCEQ does not have the authority to regulate, enforce, or mediate private actions between citizens.

Citizen Environmental Watch The Citizen Environmental Watch Program allows information gathered by private individuals to be developed as evidence of environmental violations. This program provides an opportunity for citizens to get involved with environmental protection.

The program is implemented by the TCEQ regional offices. Regional staff review the complainant's information—such as photos, videotapes, and water samples—and decide on the appropriate course of action. If necessary, an investigator will visit the site or facility in question. Individuals must be willing to disclose their identities and, in some cases, asked to testify. Strict agency procedures for gathering and preserving evidence must be followed. The TCEQ can pursue an enforcement action only if the evidence is admissible at a hearing, based on Texas rules of evidence. The agency will not consider information gathered illegally.

If a serious or unresolved violation is found, the TCEQ will initiate an enforcement action. Individuals providing evidence in an enforcement case will be notified of the results of the investigation and any follow-up enforcement actions.

Composting Compost is produced by aerobic decomposition of organic matter. Compost feedstock may include, but is not limited to, leaves and yard trimmings, biosolids, food scraps, food-processing residuals, manure or other agricultural residuals, forest residues, bark, and paper. Composting benefits water quality by saving landfill capacity, reducing the use of chemical fertilizers, improving manure management which aids in the reduction of phosphorus and bacteria concentrations due to storm water runoff from dairy farms, and promoting establishing vegetation which helps reduce NPS pollution from rainfall runoff.

The TSSWCB and the TCEQ partnered to initiate an innovative solution to water quality problems in the North Bosque and Leon watersheds, the Composted Manure Incentive Program (CMIP). Storm water runoff containing manure from dairy farms is a significant source of phosphorous and bacteria in the two watersheds. Incentive payments, funded by CWA §319 funds, are given to governmental entities towards the purchase of eligible composted manure to be used in beneficial uses. The ultimate goal of the project is to ensure that markets are in place to support the continued export of manure from these two watersheds after rebate funds

106 TCEQ/TSSWCB joint publication SFR-68/04 have been exhausted. The Texas Department of Transportation (TxDOT) uses the compost throughout the state to promote establishment and maintenance of roadside vegetation.

The TCEQ provides outreach and technical assistance in the use of compost throughout the state. The outreach program provides workshops, demonstrations, and technical assistance specifically addressing the benefits, opportunities, and incentives for using composted manure. The TCEQ has an expanded outreach program in the North Bosque and Leon watersheds that is conducted in conjunction with the CMIP.

The Texas Cooperative Extension also has an expanded education and marketing campaign for composted manure. This campaign effort has surveyed existing and potential markets for composted manure in the CMIP watersheds, organized a comprehensive education and marketing campaign focused on these markets, and begun field trials and demonstrations to document and publicize the effectiveness of the appropriate uses of composted manure in a wide array of landscaping, horticultural, and agricultural applications.

Used Oil Recycling Texas law prohibits dumping used oil on land or into sewers or waterways. This includes the use of used oil as a dust suppressant. Texas has also banned used oil filters from being placed in or accepted for disposal in a landfill. TCEQ requires all transporters, handlers, and collection centers for used oil to register with the agency and report annual quantities of used oil handled. A facility which accepts used oil from household do-it-yourselfers may be exempted from the state fee on the sale of new automotive oil.

Oil and Gas Waste Management The Railroad Commission of Texas (RRC) regulates activities and the wastes generated as a result of activities associated with the exploration, development, or production of oil or gas or geothermal resources, including transportation of crude oil or natural gas by pipeline. These wastes are termed “oil and gas wastes”, and include both hazardous and non-hazardous oil and gas wastes.

The RRC has responsibility for the prevention of pollution that might result from activities associated with exploration, development, and production of oil, gas, or geothermal resources of the State to prevent operations dangerous to life or property. The RRC uses rule-authorization and permitting to regulate the storage, transport, processing, and disposal of oil and gas wastes in Texas to prevent releases to the environment. RRC rules require that oil and gas wastes be processed and disposed of only in an authorized or permitted manner RRC’s environmental and safety programs cover drilling, operation, and plugging of wells;

TCEQ/TSSWCB joint publication SFR-68/04 107 separation and treatment of produced fluids in the field or at natural gas processing plants; storage of crude oil before it enters the refinery; underground storage of hydrocarbons in slat caverns or natural gas depleted reservoirs; transportation of crude oil or natural gas by pipeline; drilling, operation and plugging of brine wells; and storage, hauling, reclamation, or disposal of wastes generated by these activities.

The RRC’s environmental and safety regulations for oil and gas wastes are administered through the Environmental Services, the Well Plugging, the Site Remediation and Special Response, and the Compliance programs. The Environmental Services program includes permitting programs for management of wastes and protection of the public from surface storage or disposal, disposal and enhanced recovery wells, underground hydrocarbon storage and brine mining. The Environmental Services program also coordinates with other state and federal agencies on environmental and safety matters. The Compliance program coordinates the activities of nine district offices in inspecting oil and gas operations and enforcing the RRC’s environmental and safety rules. The Well Plugging and the Site Remediation and Special Response programs handle special Oil Filed Cleanup Fund (OFCUF). The OFCUF is supported by the oil and gas industry through various fees, taxes, and penalties. The Site Rememdiation and Special Response program also reviews operator cleanup activities and coordinates the RRC’s response to large spills an other major events.

The TCEQ Household Hazardous Waste Management Program TCEQ’s Household Hazardous Waste (HHW) Management program primarily regulates HHW collections and programs. Technical and regulatory information is also provided to entities on setting up HHW collection programs as well as general information to citizens of Texas on HHW issues. Quarterly meetings of a HHW managers network are also coordinated.

Tire Disposal Program Scrap tires must be managed to prevent fires and control disease vectors (mosquitos and rats). The toxic air pollutants from tire fires can become nonpoint source water pollutants through atmospheric deposition. Prior to Texas' scrap tire management program, large illegal tire dumps often appeared on the beds and banks of streams, damaging riparian habitat. The TCEQ regulates the collection, processing and recycling/disposal of over 20 million tires discarded each year in Texas. Anyone who stores more than 500 scrap tires must register with the TCEQ as a scrap tire storage site. Scrap tires must be hauled by a registered transporter to either a permitted landfill or an authorized scrap tire facility. All facilities must keep manifest records showing the disposition of scrap tires.

108 TCEQ/TSSWCB joint publication SFR-68/04 The City of San Antonio Waste Management Programs The City of San Antonio's Household Hazardous Waste (HHW) Program operates a permanent HHW Drop-off Center (DoC). This service provides an environmentally safe means for citizens to dispose of items such as paint, pesticides, oil, anti-freeze, batteries and household cleansers. If thrown in the regular trash, these items could potentially harm the solid waste collectors and contaminate our environment. The program has developed an outreach campaign, "Take it to the Doc!", that urges the public to dispose of hazardous household waste properly by bringing it to the HHW DoC.

All collected HHW materials are handled and packaged for disposal by technically trained personnel. Following collection, the transport of all materials is performed by a licensed hazardous materials transporter. The method of disposal depends upon the type of material. Approximately 80% of all materials collected through the City of San Antonio HHW Program are recycled. Materials that cannot be recycled are disposed of by a licensed hazardous materials treatment, storage and disposal facility.

City of Austin Biosolids Composting Another innovative strategy for wastewater management was developed by the City of Austin in the 1950's. Originally established as a series of stabilization ponds used to treat wastewater residuals from the city's wastewater plants, the Hornsby Bend Beneficial Reuse Program has become a nationally recognized, EPA award-winning sludge-recycling facility.

Situated on 700 acres of land along the Colorado River, about 10 miles east of downtown Austin, the facility is a national model for innovative approaches to solving environmental problems. Each year, thousands of tons of wastewater sludge is anaerobically digested and composted into an EPA-certified soil conditioner called "Dillo Dirt". Waste products (tree trimming and yard waste), which would ordinarily be disposed of in a landfill, are utilized as bulking agents, significantly reducing the cost of waste disposal for Austin residents. This popular product is distributed to various city departments for use in park facilities and to commercial vendors for sale.

Water separated from the sludge flows through a 250-acre facultative pond system. After polishing in a 4-acre greenhouse enclosed aquatic plant facility, the treated effluent is used to irrigate approximately 160 acres of a 220-acre on-site farm. Hay and other feed crops are harvested from this land by a contract farmer, and the city receives a portion of the profits. Some digested and dried sludge is also land applied to the on-site farm to improve soil conditions. Plans are underway for the program, regulated by the TCEQ, to be expanded to off-site agricultural locations.

TCEQ/TSSWCB joint publication SFR-68/04 109 Wastewater Management Municipalities, industries, and agricultural operations can produce large volumes of wastewater. Unless proper disposal methods are used, wastewater can contaminate the state's surface and ground waters by contributing pathogens, organics, and metals to stormwater runoff.

Multiple segments around the state are not meeting water quality criteria and improperly treated on-site sewage (OSSF) effluent has been identified as a major nonpoint source contributor. Historically, individual OSSFs were found primarily in rural areas. However, rapidly increasing urban populations, combined with shifts in population from rural to urban areas, have led to pressure for widespread suburban development. One way to reduce the amount of NPS pollution resulting from on-site sewage effluent is to develop centralized wastewater collection and treatment facilities. These facilities are regulated in Texas by the TCEQ to ensure that the effluent they release into the waters of the state is treated to certain standards that minimize NPS pollution. This is an example of a point source solution to a nonpoint source problem.

Raw sewage and wastewater can increase levels of nutrients in water. Elevated nutrient concentrations encourage algal growth and decrease dissolved oxygen. Low dissolved oxygen endangers aquatic plants and animals. Following is a discussion of some of the programs in place to manage nonpoint source pollution from wastewater.

The On-Site Sewage Facility Program About 50,000 on-site wastewater treatment systems are installed annually in Texas to treat wastewater from rural and suburban homes and small businesses. An on-site wastewater treatment system collects, treats and applies wastewater to soil. By definition, wastewater managed by an on-site system cannot leave the property where it is generated. Texas has approximately 4-5 million households relying upon on-site sewage facilities (OSSF) for wastewater disposal and the numbers are increasing each year.

The Texas legislature passed legislation to regulate on-site sewage facility systems statewide. The law established parameters for delegation of authority to regional and local governments-such as counties, cities, river authorities and special districts to implement and enforce on-site sewage regulations with approval and oversight by the TCEQ. The TCEQ sets minimum standards, local authorities can adopt more stringent rules if approved by the TCEQ.

The TCEQ provides technical assistance for designers and installers of OSSF systems by reviewing plans to ensure that new facilities are designed and constructed using best current technology. TCEQ staff conduct plan reviews, installation inspections, and follow up inspections

110 TCEQ/TSSWCB joint publication SFR-68/04 to ensure that designated controls are used and compliance with regulations is achieved. These inspections also assist in pinpointing areas of concern. Existing, failing systems are generally identified by citizen complaints and required to be brought to current standards. TCEQ staff also provide oversight of delegated local authorities.

The TCEQ is also responsible for the certification of inspectors and installers of OSSFs. The responsibilities of a registered installer include the installation of treatment tanks and the installation or replacement of sewer lines or disposal components according to minimum state standards or the more stringent conditions in the authorized agent's order or ordinance. OSSFs must be constructed by licensed individuals who have been properly trained in appropriate installation procedures. Any individual who is compensated by another individual to construct, install, alter, or repair an on-site sewage facility must be licensed as an installer. Individuals who manage the on-site sewage program for an authorized agent must be licensed as a "designated representative." Designated representatives review planning materials, issue permits to construct, investigate and resolve complaints, initiate enforcement on violators, issue authorizations to operate, maintain records, and submit reports as required.

The Texas On-Site Wastewater Treatment Research Council Meeting the research and technology transfer needs of individuals involved in wastewater treatment in Texas is the major goal of the Texas On-site Wastewater Treatment Research Council. The Council was established by the Legislature to fund research that demonstrates the feasibility of on-site treatment alternatives. The Council awards competitive grants to accredited colleges and universities in Texas, governmental entities, or other acceptable public or private entities. Research funded by the grant must be for improvement in the quality, and reduction in cost, of on-site wastewater treatment technologies provided to Texans. The Council also awards grants to enhance technology transfer regarding on-site wastewater treatment by using educational courses, seminars, symposia, publications, and other forms of information dissemination. To support the research program, a $10 fee is charged to all property owners in Texas who apply to construct OSSFs for treatment and disposal of wastewater.

The City of El Paso Reclaimed Water System The City of El Paso Water Utilities (EPWU), one of the nation's most progressive water agencies, has been delivering reclaimed water since 1963. As a pioneer in water reclamation, EPWU has attained international recognition for its innovative and extensive use of recycled water. EPWU now operates the most extensive and advanced reclaimed water system in Texas for industrial use and landscape irrigation.

TCEQ/TSSWCB joint publication SFR-68/04 111 EPWU's philosophy is that water is too valuable to be used only once. Wastewater from within the EPWU collection area is collected and treated from one of four EPWU's Wastewater Reclamation Plants using advanced or tertiary treatment. The result is a high water quality that has earned the EPWU the reputation as operating the first wastewater treatment plant in the world to meet Drinking Water Standards for its reclaimed water. The other three plants meet the highest possible quality rating of Type I reclaimed water as described in state regulations monitored by the TCEQ. These facilities were constructed with funding from the U.S. Bureau of Reclamation grants, U.S. Economic Development Administration grants, Texas Water Development Board low interest loans, and City of El Paso Water and Sewer revenue bonds.

Reclaimed water use has been proven safe for the following types of applications throughout the U. S. and are approved for use by the TCEQ: city parks, school playgrounds and sports fields, landscape nurseries, sports complexes, golf courses, street median landscaping, construction projects, street sweeping, fire protection, residential and multi-family landscape, industrial cooling towers, and other industrial processes. The EPWU is also authorized to reinject wastewater treated to drinking water standards into the local aquifer.

The Brazos River Authority Technical Assistance Program The Brazos River Authority (BRA) is committed to its mission of developing, managing, and protecting the water resources of the Brazos River Basin to meet the needs of Texas. The diversity that exists within the 42,000 square mile Brazos River Basin is extreme. Annual rainfall ranges from about 19 inches in West Texas to more that 56 inches along the gulf coast. Rapid and localized population growth, and ever changing land uses, presents the BRA with many challenges that must be planned for and addressed appropriately. To meet the needs of Texas, innovative measures are utilized to deal with issues such as moving water from areas with surplus water to areas with water deficits and removing constituents such as salt from both inland and gulf coast waters.

Beginning in the early 1970's, the BRA pioneered the development of regional wastewater treatment systems to reduce the amount of NPS pollution resulting from OSSFs. Today BRA operates 4 regional wastewater treatment plants, 8 municipal wastewater treatment plants, one regional composting operation, and 3 water treatment plants. Over the years, BRA has received numerous awards from the TCEQ and EPA, recognizing the excellence of their operations, maintenance, and design.

The BRA is a prominent and active partner in numerous water quality improvement projects and studies throughout the Brazos River Basin with a major emphasis on non-point source agricultural issues such as confined animal feeding operations (poultry and dairy) and crop production, and non-agricultural sources such as on-site sewage facilities. The BRA is

112 TCEQ/TSSWCB joint publication SFR-68/04 committed to a positive and proactive approach to identify water quality problems and to follow through with appropriate restoration measures.

The BRA also offers programs such as the Technical Assistance Program to assist cities, water districts, and other entities with their particular water and wastewater treatment operations. These services include regulatory review, operations assistance, preventive maintenance, program preparation, laboratory testing, and industrial pretreatment. A key component of the industrial pretreatment program is to work with cooperating industries to reduce their pollutants before they enter the sewerage system, thereby reducing the potential to impact water quality.

Storm Water Management Storm water pollution is a form of water pollution that originates from urban and rural landscapes. Everyday activities such as landscape maintenance, the operation of automobiles, and building construction can cause water pollution under certain circumstances. Pollution occurs when rainfall or infiltrating groundwater carry accumulated pollutants to receiving water bodies such as surface lakes, streams, and coastal waters or groundwater aquifers.

The fertilizers used to maintain urban landscapes can cause excessive growths of aquatic vegetation and can lead to unhealthy concentrations of nitrates in groundwater used as drinking water supply. Metals and organic compounds associated with the operation of automobiles can be toxic or carcinogenic to human health and wildlife. Air emissions that originate from a multitude of industrial, urban, and mobile sources are deposited onto the ground, with the potential to add pollutants to surface and ground water when rainfall runoff occurs. Sediments that erode from land areas disturbed by construction activities can impair aquatic wildlife habitats, shorten the design life of reservoirs, and act as a carrier for contaminants. In addition, increased impermeable surface due to urbanization can alter the quantity and quality of storm water runoff by facilitating the transportation of runoff and accumulated sediments from paved surfaces. The water-related impacts of construction and urbanization can include habitat alteration, higher peak flows and flooding, erosion, and increased pollutant loads such as sediment, metals, nutrients, and bacteria. The following is a discussion of some of the programs in place throughout the state to address NPS pollution resulting from storm water runoff.

State Storm Water Permitting Programs The state of Texas assumed the authority to administer the National Pollutant Discharge Elimination System (NPDES) program in Texas on September 14, 1998. NPDES is a federal regulatory program to control discharges of pollutants to surface waters of the United States. The TCEQ’s Texas Pollutant Discharge Elimination System (TPDES) program now has federal regulatory authority over discharges of pollutants to

TCEQ/TSSWCB joint publication SFR-68/04 113 Texas surface water, with the exception of discharges associated with oil, gas, and geothermal exploration and development activities, which are regulated by the Railroad Commission of Texas (RRC).

The urban storm water program administered through the TPDES program addresses small municipalities, growing urban fringe areas, and other urban development under the Phase II rules. If an urban area falls within the scope of the storm water program, a TPDES permit is required, a management plan for the reduction of the runoff impacts must be implemented locally, permit compliance must be evaluated, and maintenance of existing surface water quality must occur, consistent with the water quality standards. TPDES permits regulate storm water discharges from industrial activities, construction activities, and municipal separate storm sewer systems (MS4s) to Texas waters. The TCEQ issues and manages TPDES permits for storm water discharges from these activities and systems. Factors that EPA require states to consider in designating urban areas as so-called MS4s include discharges to sensitive waters, high growth areas or growth potential, contiguity to an existing urban area, significant contribution of pollutants to surface water, and ineffective protection of water quality by other state programs.

Texas Land Application Permits (referred to as no discharge permits) authorize individual facilities to manage storm water and/or wastewater through evaporation, subsurface disposal, or irrigation systems which prevent runoff and prevent accumulation of nutrients in the soil. The TCEQ has a general permit which provides authorization for qualifying manure composting facilities to dispose of storm water through irrigation and/or evaporation.

The RRC regulates discharges of waste from activities associated with the exploration, development, or production of oil, gas, or geothermal resources, including transportation of crude oil and natural gas by pipeline, and from solution brine mining activities (except solution mining activities conducted for the purpose of creating caverns in naturally- occurring salt formations for the storage of wastes regulated by the TCEQ). Discharges of waste regulated by the RRC into water in the state cannot cause a violation of the water quality standards. While water quality standards are established by the TCEQ, the RRC has the responsibility for enforcing any violations of such standards. In addition, the NPDES authority delegated to Texas by EPA does not include those discharges from activities under the RRC's jurisdiction; such a discharger must obtain authorization from both the RRC and the EPA.

Texas Department of Transportation Storm Water Management Guidelines Involvement in construction and urbanization makes the Texas Department of Transportation (TxDOT) a key player in the control of storm water pollution. It is TxDOT's responsibility to be aware of the

114 TCEQ/TSSWCB joint publication SFR-68/04 problem and to take measures to minimize and/or prevent storm water pollution. Therefore, it is the goal of TxDOT to prevent the degradation of receiving waters due to storm water runoff from highway operations. TxDOT is developing a comprehensive storm water management program aimed at achieving this goal.

TxDOT has published a document entitled, "Storm Water Management Guidelines for Construction Activities". Although other issues are mentioned such as project planning and maintenance, the focus of the document is to provide guidance on the use of storm water management measures during highway construction.

With this document, the user can develop a storm water management plan tailored to the needs of a particular project. In addition, the measures in this document will assist in meeting regulatory requirements where storm water is a concern. Although runoff control measures are required by law in some instances, these measures are applicable anywhere soil is disturbed and erosion and sedimentation are potential problems. The material in this manual is derived primarily from storm water guidance documents developed and adopted by the TCEQ.

The City of Dallas Trinity River Corridor Project The Trinity River Corridor Project is made up of several distinct elements. The overall effort will include the building of levees, wetlands, a downtown lake, gateway parks, trails, equestrian centers, and an interpretive center. It will also involve the expansion and preservation of the Great Trinity Forest through the acquisition of 2,700 acres of land along the Trinity River.

One element of the Trinity River Corridor project is the construction of a flood control project along the Trinity River that will reduce the flooding risk for about 12,500 structures in Dallas. The Dallas Floodway Extension (DFE) will restore standard project flood (800-year) protection to the downtown Dallas vicinity and the densely populated areas along the southern Trinity River corridor.

A Chain of Wetlands will be constructed in conjunction with the DFE. The Chain of Wetlands extends about four miles in length and is comprised of seven wetland cells that produce 170 acres of water surface. About 100 acres of grasslands will fill in between and around the wetland cells. The wetlands will be fed by treated wastewater discharge. The Chain of Wetlands also offer a secondary route for flood waters of the Trinity River lowering the flood elevations and filtering flood waters of nutrients and sediments prior to discharge into the Trinity River. The design team for the Chain of Wetlands includes the Corps, EPA, U. S. Fish and Wildlife Service, City of Dallas staff, TPWD, and the Trinity River Corridor Citizens Committee.

TCEQ/TSSWCB joint publication SFR-68/04 115 The San Antonio River Tunnel The San Antonio River Tunnel system was constructed to lower the risk of damage due to flooding and help reduce nonpoint source pollution in storm water runoff discharged into the San Antonio River. The system consists of 12 trash rakes cycled on a daily basis to prevent large bulky floatable debris from entering the tunnel system and eventually the San Antonio River. During a storm event, the trash rakes are run as needed to ensure operational efficiency of the system. Approximately 500 tons of floatable debris is removed annually, with three tons removed weekly and the remainder from storm events.

This facility also contains a re-circulation feature incorporating a Parkson screen that removes smaller debris prior to entering the San Antonio River. This re-circulation system helps maintain water quality in the famous downtown riverwalk during periods of low flow in the river. The tunnel is to remain full of water at all times allowing the re-circulation feature to ensure water quality is maintained in the tunnel itself so when initial flushing during a storm occurs, downstream water quality is not affected.

Integrated Storm Water Management Project The North Central Texas Council of Governments (NCTCOG) organized the integrated Storm Water Management (ISWM) project in order to protect streams and rivers from nonpoint source pollution and heightened flooding risks due to urban development. The project will foster partnerships with state and federal agencies to meet regulatory requirements and provide guidelines for communities to establish a successful comprehensive storm water management program. The project provides an innovative site development approach for addressing both storm water quantity and quality. The ISWM project is intended to be an essential element for ongoing and future cooperative storm water initiatives in North Central Texas.

The NCTCOG is working with approximately 55 local governments in order to create sound storm water management guidance documents for the region through the ISWM project. The ISWM Design Manual for Development will outline the most current and applicable storm water management techniques and provide criteria and rationales for the selection of structural and nonstructural storm water quality and quantity BMPs.

The San Angelo Urban Nonpoint Source Abatement Program The north fork of the Concho River winds through the City of San Angelo traversing residential, recreational, industrial, and commercial land use areas. This urban reach of the river has a long history of poor water

116 TCEQ/TSSWCB joint publication SFR-68/04 quality and a record of frequent fish kills encompassing a period of at least thirty years. Several water quality studies conducted by private and public entities have confirmed that urban runoff and nonpoint source pollution have been the primary cause of poor water quality conditions.

Recognizing the desire of city residents and stakeholders to improve water quality in the North Concho, the Upper Colorado River Authority (UCRA) partnered with the City of San Angelo to appoint a Citizen's Advisory Group to develop a plan for eliminating the fish kills and addressing nonpoint source pollution impacting the river. The work of the committee culminated in a Master Plan for pollution abatement targeting seven urban subwatersheds. The worst watersheds for pollutant loadings were identified and a priority system established for construction of facilities that would lessen the load of organic material and nutrients entering the river.

The implementation plan includes construction of a gabion retention structure, stormwater control structures, and streambank stabilization. The plan is still in the process of being implemented. The best management practices that have been implemented have produced improvements in water quality expressed by the absence of fish kills following major storm events. The program also has involvement and support from local elected officials and the initiation of an extensive public outreach program, the Aquatic Experience, which is discussed in Chapter 7.

Pesticide Management Texas Pesticide Laws define a pesticide as a substance or mixture of substances intended to prevent, destroy, repel, or mitigate any pest, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant. Pesticides enter water bodies through runoff from sites where there are applied such as farms, golf courses, parks, highway right-of-ways, and lawns and gardens; by leaching into groundwater; wastewater discharges; and atmospheric deposition. Pesticide contamination occurs as a result of improper or over use, spills, improper storage, and improper disposal. According to a USGS study of 48 drinking water reservoirs in Texas (September 2000), the pesticides most frequently detected in Texas drinking water reservoirs included atrazine, diazinon, metolachlor, and simazine. EPA has identified pesticide contamination as a nationwide problem in surface water and groundwater. In response, there has been a coordinated state effort to monitor pesticides and define roles and responsibilities in responding to the water quality effects of pesticide contamination.

In addressing pesticide contamination several major principles need to be taken into account. Agricultural pesticides are beneficial and important to the production of food and fiber, and are of significance to the state economy. However, the use of pesticides should not impair any use of waters of the state or cause a public health hazard. Drinking water

TCEQ/TSSWCB joint publication SFR-68/04 117 supplies, both groundwater and surface water, should especially be protected. State and local government should be the first line of protection, their efforts being complemented by federal expertise and information. Efforts in Texas in addressing these issues include, for groundwater, the adoption of the Groundwater Pesticide Management Plan and, for surface water, the incorporation into this document, of a similar elaboration of management measures. These surface water pesticide management measures were primarily developed under the guidance of the Texas Watershed Protection Committee.

Groundwater Pesticide Management Plan Considerable progress has been made in the prevention of groundwater contamination from pesticides by laying out specific management measures in The State Management Plan for Prevention of Pesticide Contamination of Groundwater – usually referred to as the Groundwater Pesticide Management Plan or PMP. This plan was published in January 2001 after several years of development under the guidance of the Texas Groundwater Protection Committee. A similar elaboration of management measures has been developed, by an interagency group, for the prevention of pesticide contamination of surface water. Many of the measures for preventing pesticide contamination of groundwater and surface water are the same, however, there are important differences.

Surface Water Pesticide Management The goal of surface water pesticide management is to provide a mechanism for the protection of surface water from pesticide contamination similar to that provided to groundwater under the PMP. The goal of surface water pesticide management is to protect and maintain the existing quality of surface water and to prevent the degradation of state surface water resources. This goal subscribes to unimpaired use of surface water, allowing for the normal use of pesticides without impairing surface water quality or posing a public health hazard. All used and potentially usable surface waters are subject to the same protection afforded by the antidegradation policy goal. This level of surface water protection complements the protection of groundwater influenced or hydrologically connected to surface water.

Pesticide contamination of surface water is detected through the state’s assessment process as described in Chapter 5. Public water supplies are regularly monitored by the Public Drinking Water Section of the TCEQ. NPS pollution resulting from pesticides is managed through prevention and response to contamination. The Texas Watershed Protection Committee (defined in Chapter 4) coordinates these activities.

Prevention and Mitigation The Texas Watershed Protection Committee recommends and coordinates a five tiered approach for prevention of pesticide contamination.

118 TCEQ/TSSWCB joint publication SFR-68/04 # General Education: General information is shared statewide to raise awareness of the potential for pesticide contamination. Brochures, displays, and slide presentations are the tools used to raise awareness. These materials are created and distributed throughout the state by the cooperating agencies of the Texas Watershed Protection Committee (TWPC).

# Education Focused on Affected Water Bodies: Educational efforts will be expanded in areas where a surface drinking water source is identified as affected by specific pesticides. This effort will be applied even though monitoring has not shown contamination beyond the Maximum Contaminant Level (MCL). Dissemination of information will be through public presentations, articles in newsletters, and advertisement of available educational literature.

# Education and Application of Best Management Practices (BMPs) in Areas with Lower Levels of Pesticides: Where monitoring has revealed contamination of surface water used as a drinking water source, but at concentrations lower than the pesticide MCL or Health Advisory Level (HAL), a voluntary BMP program will be encouraged. Furthermore, cooperating agencies may take additional action through their standard education programs.

# Education and Application of BMP’s in Areas with Greater Levels of Pesticides: In a surface water body used as a drinking water source, where monitoring has revealed a nonpoint source contamination by a pesticide at levels greater than the MCL or HAL, a voluntary education and BMP program will be initiated. If there is no evidence of sufficient improvement, use restrictions will be implemented. # Pesticide Use Restrictions: If all previous levels of preventive measures fail, the final recourse will be use restriction of the pesticide in the water body which is contaminated. Such actions will be implemented by the TDA after consultation with the other involved agencies through the TWPC. Users will be notified of the restricted use status of the pesticide in their area.

Response to Contamination The response to contamination of surface water by pesticides falls under the jurisdiction of a number of agencies. Pesticide runoff is typically treated as an agricultural nonpoint source pollution therefore, the

TCEQ/TSSWCB joint publication SFR-68/04 119 TSSWCB plays a key role in response. The TCEQ Source Water Assessment and Protection (SWAP) program provides response assistance when the water body is a drinking water supply. The Texas Department of Agriculture (TDA), the lead regulatory agency for agricultural pesticides, provides expertise on pesticide regulation and education. When pesticide contamination results in a surface water body not meeting standards the response is addressed through the TMDL process as described in Chapter 5. When the pesticide contamination does not result in a standards violation response occurs through the preventive actions described above and, if the local entity responsible for the affected water body chooses to participate, through the TCEQ’s SWAP program described below. The TWPC coordinates all responses to pesticide contamination to ensure that the responsible agencies or programs are notified and take appropriate action.

Implementation Under Source Water Assessment Program Under the Source Water Assessment Program (SWAP) all surface waters that contribute to public drinking water supplies are investigated for potential contamination. Investigations proceed in the following stages:

# Identification of areas that supply public drinking water # Delineation of the boundaries of the assessment areas needed to protect the water supplies # Inventorying of potential sources of contamination within the assessment areas # Informing the public of the results # Implementation of a source water protection program (see page 113)

Pesticide Review Program The EPA reviews and registers pesticides to ensure they meet current scientific and regulatory standards. Through this process consideration is made for human health and ecological effects of pesticides. The EPA issues risk management decisions based on the reviews that may result in registration eligibility, risk reduction measures, or elimination of uses. Risk factors that are analyzed include risks to workers, risks associated with residential uses, and risks affecting drinking water. Measures used to address risks include requiring intensive monitoring programs, prohibition of use in specified geographic areas or watersheds, education programs to ensure proper use and mitigation requirements. The State of Texas has developed programs to enforce and ensure compliance with this EPA program at the state level.

120 TCEQ/TSSWCB joint publication SFR-68/04 Agricultural Pesticide Regulation The Texas Department of Agriculture (TDA) is the State's lead regulatory agency for agricultural pesticide regulation. The Texas Pesticide and Herbicide Laws grant TDA the authority to enforce the provisions of the law pertaining to the registration, distribution, and use of all agricultural pesticides. TDA is responsible for licensing all agricultural pesticide applicators and labeling, storage, sales, usage, and disposal of all pesticides. TDA also cooperates with other state agencies that have statutory pesticide responsibilities, such as the TCEQ, the Structural Pest Control Board, and the DSHS. TDA is responsible for the enforcement of federal pesticide laws under a cooperative agreement with the EPA.

The TDA cooperates with all agricultural producers and other users of pesticides to make certain that all pesticides are used safely and according to instructions. The Texas Pesticide Control Act requires that pesticides be stored in a manner that will reasonably ensure that human food, domestic and public water, pet foods, drugs, animal feeds, commercial fertilizers, seeds, or clothing will not be contaminated. The law also directs that pesticide containers be disposed of as directed on the label or by any other methods approved by the TDA. Any use of pesticides inconsistent with label directions is a violation of the law and may subject the user to penalties under federal and state law.

The TDA is also responsible for developing and implementing the State of Texas Plan for Certification of Pesticide Applicators. All application equipment used by commercial applicators must be registered, and is subject to inspection at any reasonable time. The Texas Cooperative Extension is responsible for training in relation to the state pesticide applicator certification program.

The Structural Pest Control Board The Structural Pest Control Board (SPCB) is authorized to promulgate rules and regulations governing the methods and practices pertaining to structural pest control to prevent adverse effects on human health and the environment. SPCB has established regulations which authorize it to enforce label instructions approved by EPA and TDA regarding application and disposal of pesticides in the urban environment. Many label instructions contain information relating to proper application and disposal of pesticides to prevent surface water contamination.

In addition, the SPCB licenses businesses, certified commercial applicators, certified noncommercial applicators, technicians, technician apprentices, non-commercial applicator apprentices, and management technicians in the structural pest control industry. The SPCB also has the authority to take action against any licensee for engaging in practices that could be detrimental to public health, safety, or the environment. The

TCEQ/TSSWCB joint publication SFR-68/04 121 SPCB also has the authority to perform inspections to monitor pesticide use and investigate complaints regarding label violations.

Agriculture Resource Protection Authority The Agriculture Resource Protection Authority (ARPA) is the coordinating body for TDA, TSSWCB, TAES, DSHS, TCEQ, and SPCB with respect to their policies and programs for management, regulation, and control of pesticides. In addition, ARPA helps to avoid overlapping responsibilities of the state agencies, facilitates all the involved agencies participation in the regulation of pesticides, and helps demarcate the various areas of responsibility of the participating agencies.

ARPA may cooperate with and advise the member agencies or any other state agency that may be concerned with the regulation of pesticides and review any rule relating to pesticides that is proposed by any of its member agencies, except rules under Chapter 125 of the Texas Agriculture Code. ARPA can inform and advise the governor on matters involving pesticides, prepare and recommend to the governor and to the legislature any legislation that ARPA considers proper for the management and control of pesticides, and make annual reports to the governor and the appropriate legislative oversight committees.

The Agricultural Waste Pesticide Collection Program The TCEQ, partners with Texas Cooperative Extension (TCE) and Texas Department of Agriculture (TDA), to organize regional waste pesticide collections held statewide. The free collections provide agricultural producers and other Texans with an opportunity to dispose of pesticides and other household hazardous wastes at no expense and with no questions asked. In addition, mercury fever thermometers are accepted and replaced at no charge with mercury-free thermometers. The program is strictly voluntary. Participants are asked to answer several survey questions. The survey responses are evaluated to determine program effectiveness.

Agricultural Management Texas has the largest number of farms and the most land in agricultural production in the United States. According to the 1997 Ag Census, 77% of the land area of Texas was in agricultural production. Of this, there are 26,762,000 acres of cropland, 15,807,000 acres of pastureland, and 95,323,000 acres of rangeland. In addition, there are almost 400 cattle feedlots, over 1200 dairies, approximately 100 hog operations, and over 1300 poultry operations in Texas.

Agricultural activities are a potential source of nonpoint source pollution. Possible nonpoint source pollutants associated with agricultural activities include nutrients, pesticides, organic matter, sediment and bacteria. These

122 TCEQ/TSSWCB joint publication SFR-68/04 pollutants may be transported to surface waters through runoff or eroded soil particles. Pesticides and nutrients may also leach into groundwater or be transported through avenues such as abandoned and improperly constructed wells or through naturally occurring hydrologic connections. Below is a discussion of some programs in place to address nonpoint source pollution resulting from agricultural activities.

Agricultural Waste Permitting Animal feeding operations, such as feedlots, dairies, and poultry operations, can be a source of pollutant discharges following rainfall events. An animal feeding operation is required to apply for a wastewater permit if it exceeds a given number of animals. These concentrated animal feeding operations (CAFOs) are prohibited from directly discharging into surface waters except under catastrophic rainfall or a chronic rainfall event.

Animal Feeding Operations (AFOs), which have fewer animals than CAFOs, do not require written authorization. AFOs are under the purvue of the Texas State Soil and Water Conservation Board (TSSWCB) and must meet the same technical requirements as a CAFO. All poultry operations must obtain a TSSWCB-certified water quality management plan (WQMP). However, by April 13, 2006, dry litter poultry operations meeting certain size requirements must obtain written authorization. AFOs and CAFOs may receive technical assistance from the TSSWCB and the U.S. Department of Agriculture-Natural Resources Conservation Service (USDA-NRCS).

The TCEQ Agriculture Permitting Program reviews technical designs of CAFOs for new facilities, facilities being modified or increased, and for facilities renewing their authorization. The designs are reviewed for selection, implementation, and use of environmentally sound BMPs to collect, store and utilize waste and wastewater and to control air emissions and odor in a manner to conform with good agricultural management practices. Waste and wastewater must be properly land-applied for beneficial use on agricultural land at agronomic rates.

A Pollution Prevention Plan (PPP) must be prepared for every CAFO facility in the State. The PPP must be prepared in accordance with good engineering practices and include measures necessary to limit the discharge of pollutants to waters in the state. The PPP must describe practices which are to be used to assure compliance with the CAFO rules. Specific components of a PPP include a site plan indicating all animal confinement areas, waste treatment/retention facilities, waste/wastewater application areas, management of waste/wastewater application areas at agronomic rates, as well as an identification of potential pollutant sources used, stored, or disposed of at the facility. Any recharge zone/features must be located, evaluated and protected. Procedures for monitoring discharges and sampling of land application areas are included in the PPP.

TCEQ/TSSWCB joint publication SFR-68/04 123 Also, descriptions of all other protective measures or BMPs used to control potential pollutant sources must be included in the PPP.

TSSWCB Water Quality Management Plan Program Texas Agriculture Code, §201.026 makes the TSSWCB responsible for planning, implementing, and managing programs and practices for abating agricultural and silvicultural nonpoint source pollution. This is primarily accomplished through the TSSWCB Water Quality Management Plan Program, which was established in 1993 by the Texas Legislature when it passed Senate Bill 503. Senate Bill 503 authorized the TSSWCB to assist agricultural and silvicultural producers in meeting the state's water quality goals and standards through this voluntary, incentive-based program.

Through this program, agricultural and silvicultural producers develop and implement site specific water quality management plans (WQMPs) in cooperation with local Soil and Water Conservation Districts (SWCDs). The WQMPs include appropriate land treatment practices, production practices, management measures, technologies or combinations thereof, and an implementation schedule.

Local SWCDs provide technical assistance to develop the plan through agreements with United States Department of Agriculture Natural Resources Conservation Service (USDA-NRCS) or the TSSWCB. After being approved by the district, the developed plan requires TSSWCB certification. Certified water quality management plans ensure farming or ranching operations are carried out in a manner consistent with state water quality goals. The state legislature provides funding through the TSSWCB for the implementation of WQMPs.

The Dairy Outreach Program Some areas of the state have been identified as having water quality problems and concerns resulting from point and NPS pollution as a result of animal feeding operations. These areas are involved in the TCEQ's Dairy Outreach Program and include Erath, Bosque, Hamilton, Comanche, Johnson, Hopkins, Wood, and Rains counties. The TCEQ, TCE, and TSSWCB conduct various NPS related activities in the Dairy Outreach Program Areas (DOPA):

# Presentations to producer groups on water quality protection and the NPS program # Review of permit applications for dairies, feedlots, and poultry facilities # Information on CAFOs rules # Education and training to producers on NPS issues such as land application of manure

124 TCEQ/TSSWCB joint publication SFR-68/04 Owners/operators of CAFOs located in the Dairy Outreach Program Areas, and operating under the state's CAFO rules, must complete an initial eight-hour course and subsequent eight hours every two years of continuing education in animal waste management. Similarly, employees of any CAFO responsible for work activities relating to compliance must be regularly trained or informed of information pertinent to the proper operation and maintenance of the facility and waste disposal. Employees at all levels of responsibility shall be informed of the general components and goals of the PPP. Training topics include land application of waste, proper operation and maintenance, good housekeeping and material management practices, recordkeeping requirements, and spill response and cleanup.

The Texas Brush Control Program The TSSWCB also achieves nonpoint source abatement through the implementation of the Texas Brush Control Program. The Texas Brush Control Program was created to enhance the State's water resources through selective control of brush species. This program is a voluntary program in which landowners may contract with the state for cost-share assistance. Local SWCDs assist landowners with development of resource management plans addressing brush control, soil erosion, water quality, wildlife habitat and other natural resource issues.

The Agricultural Loan Program The Texas Water Development Board (TWDB) provides grants and loans for agricultural water conservation equipment and practices which promote, demonstrate, or evaluate more efficient use of irrigation in agriculture. Grants are available to political subdivisions and state agencies. Loans are also available to political subdivisions and individuals through political subdivisions or a linked deposit program. The use of more efficient practices can reduce agricultural NPS loadings in surface and groundwater.

The Private Lands Enhancement Program Through the Private Lands Enhancement Program, the Texas Parks and Wildlife Department (TPWD) provides technical assistance to persons who desire to include wildlife management considerations in present or future land use practices. On request, a TPWD biologist will meet with the land manager and conduct an inspection of the property. The land manager will be asked to define the various needs and uses of the property and to establish an objective for wildlife considerations. The biologist will provide recommendations which may include a written management plan. Field biologists work with individual landowners on request to develop land management plans which use environmentally and economically sound land use practices. Implementation of the management plan is

TCEQ/TSSWCB joint publication SFR-68/04 125 completely voluntary. Practices include grazing rotation and management for increased grass cover. Filter strips in riparian areas are established. Upland erosion controls and establishment of vegetative cover reduce runoff and allow filtration. Strip removal practices for cedar are used to decrease loss of subsurface water to cedar. These practices combined lead to improved infiltration, increased water retention, and in some instances the rejuvenation of natural springs.

The Environmental Quality Incentives Program Resources available to address issues related to nonpoint sources from privately owned agricultural land were significantly enhanced by the passage and implementation of the 2002 Federal Farm Bill. The Environmental Quality Incentives Program (EQIP) in the Conservation Title of the 2002 Farm Bill is a voluntary conservation program that promotes agricultural production and environmental quality as compatible goals. Through EQIP, farmers and ranchers may receive financial and technical assistance to install or implement structural and management conservation practices on eligible agricultural land. EQIP is administered by the USDA-NRCS, but the priorities for allocation and distribution of funds are established with input from a State Technical Committee that is composed of representatives from federal and state resource agencies and organizations that are associated with agriculture. The TSSWCB and TCEQ are represented on this committee. In Texas, financial assistance funds will be used to address both the local high priority practices identified by the Local Work Groups that are chaired by soil and water conservation districts and the statewide resource concerns identified by the State Technical Committee. The State Technical Committee and Local Work Groups recommend the practices eligible for cost share and the cost share rates that will be paid. Eligible persons may select to apply in the county-based program recommended by the Local Work Group or in one of the Statewide Resource Concerns recommended by the State Technical Committee. Landowners and operators will choose the practices and evaluation systems that best fit their needs.

The availability of EQIP, active participation in the State Technical Committee, Local Work Groups, and accommodation of recommendations from the State Technical Committee by the State Conservationist have provided opportunities to focus resources on problem areas that were previously difficult or impossible to address. The voluntary nature of the program has enabled the state technical committee and the USDA-NRCS to establish state level resource concerns. By bringing this program down to the state level they are able to provide a portion of funds as incentive payments to producers that implement structural and management practices to address specific environmental problems. Before, EQIP funding assistance for individual land owners and agricultural producers was unavailable or very difficult to obtain. Through the State Technical Committee, the USDA-NRCS has actively pursued information on areas of the state where changes or adjustments in practices by individual land

126 TCEQ/TSSWCB joint publication SFR-68/04 owners would be needed to contribute to the alleviation of identified environmental problems. This has enhanced the opportunities for regulatory agencies to use a combination of regulatory and voluntary practices to address specific problem areas impacted by nonpoint sources or a combination of point sources and nonpoint sources.

The Watershed Program The purpose of the Watershed Program, administered by the USDA-NRCS, is to assist Federal, State, local agencies, local government sponsors, tribal governments, and program participants to protect and restore watersheds from damage caused by erosion, floodwater, and sediment; to conserve and develop water and land resources; and solve natural resource and related economic problems on a watershed basis. The program provides technical and financial assistance to local citizens or project sponsors, builds partnerships, and requires local and state funding contribution.

Resource concerns addressed by the program include watershed protection; flood prevention; erosion and sediment control; water supply; water quality; opportunities for water conservation; wetland and water storage capacity; agricultural drought problems; rural development; municipal and industrial water needs; upstream flood damages; water needs for fish, wildlife, and forest-based industries; fish and wildlife habitat enhancement; wetland creation and restoration; and public recreation in watersheds of 250,000 or fewer acres.

Plans or surveys including watershed plans, river basin surveys and studies, flood hazard analyses, and flood plain management assistance are developed to identify solutions that use conservation practice and nonstructural measures to solve resource problems. If approved, technical and financial assistance is provided for installation of improvement measures specified in the plans.

Conservation Technical Assistance Program The Conservation Technical Assistance program, administered by the USDA-NRCS, provides voluntary conservation technical assistance to land-users, communities, units of state and local government, and other Federal agencies in planning and implementing conservation practices that address natural resource issues. The program encourages and assists citizens to voluntarily conserve, improve and sustain natural resources.

Conservation Reserve Program The principal mission of the Farm Services Agency (FSA) is designed to stabilize farm income, assist farmers with conservation of land and water resources, provide credit to new or disadvantaged farmers and ranchers, and help farm operations recover from the effects of disaster. Many of the

TCEQ/TSSWCB joint publication SFR-68/04 127 FSA operated programs are funded through the Commodity Credit Corporation (CCC), a government owned and operated corporation established to stabilize, support, and protect farm income and prices. The Conservation Reserve Program is a voluntary program administered by the FSA that offers annual rental payments, incentive payments, annual maintenance payments for certain activities, and cost-share assistance to establish approved cover on eligible cropland. The program encourages farmers to plant long-term resource-conserving cover to improve soil, water, and wildlife resources. The CCC makes available cost-share assistance in an amount equal to not more than 50% of the participant's costs in establishing approved practices. Contract duration is between 10 and 15 years. The NRCS, Cooperative State Research and Education Extension Service, state forestry agencies, and local soil and water conservation districts provide technical support for this program.

USDA-Agricultural Research Service The Agricultural Research Service (ARS) is the principal in-house research agency of the USDA. ARS conducts research to develop and transfer solutions to agricultural problems of high national priority. The mission of the ARS is to increase understanding and develop solutions to protect the Nations's soil and water resources. Two of the twenty-two ARS National Programs, Water Quality Management and Soil Resource Management, are strongly committed to applied nonpoint source pollution research. In Texas, ARS is conducting ongoing research on NPS related issues such as: land application of municipal and agricultural wastes; improved management of soil, water, nutrients, and chemicals in agricultural production systems; and enhanced simulation tools for water quality, hydrology, and crop growth. ARS research, conducted by laboratories throughout the state, is often carried out in cooperation with universities, state research and extension centers, and private organizations.

The Texas Institute for Applied Environmental Research The Texas Institute for Applied Environmental Research (TIAER) was established as part of the Texas A&M System to conduct applied research on environmental issues that have public policy implications. TIAER is also responsible for providing national leadership on emerging environmental policy and to provide a setting for environmental studies on the interface between government and the private sector. Establishing interdisciplinary programs or partnerships to develop and implement new policies, technologies, strategies, and relationships is another responsibility of TIAER. Partnerships with other universities and state agencies build on the strengths of each entity to produce an effective, efficient program.

The TIAER goal is to impact state and national environmental policy. A fundamental principal to this goal is improvements in the environment are

128 TCEQ/TSSWCB joint publication SFR-68/04 best accomplished by conducting scientific research and using research results to formulate policy recommendations that will actually be implemented by government and other institutions. TIAER seeks to use cutting-edge strategies and technologies to assist developers and implementers of environmental policy.

TIAER staff performs ambient monitoring and analyzes data to assess nonpoint source impacts to receiving waters and improvements to receiving water from best management practice implementation. TIAER also works to refine and apply computer models to simulate and evaluate nonpoint source management practices.

The Texas Water Resources Institute The Texas Water Resources Institute is a unit of the Texas Agricultural Experiment Station and Texas Cooperative Extension. It is part of a national network of institutes created by the Water Resources Research Act of 1964. The Institute is funded by the United States Geological Survey and is affiliated with the National Institutes for Water Research.

The Texas Water Resources Institute serves as a focal point for water-related research at Texas universities, encouraging discussion of statewide issues through meetings and multi-university studies. The Institute links academic expertise with state and federal agencies, strengthening water research and education. Additionally, the Institute provides leadership for water resource programs through grant administration, pre-award services, project management, communication, and facilitation of interagency collaboration.

The Lower Colorado River Authority - Creekside Conservation Program The Lower Colorado River Authority (LCRA) is dedicated to land stewardship through several innovative conservation programs. The LCRA has joined with numerous partners throughout the state to promote land conservation and preserve wildlife habitat in Central and South Texas.

As farmers and ranchers lose topsoil to erosion, land productivity decreases. Thousands of acres of valuable soil are washed into tributaries and lakes every year. This sediment can build up to create flood management problems, threaten aquatic habitats, and reduce groundwater recharge. Waterways also suffer from excessive sedimentation and nonpoint source pollution.

Since 1990, LCRA's Creekside Conservation Program has worked with landowners and state and federal agencies to reduce sedimentation and agricultural nonpoint source pollution on privately owned land in eleven counties. The LCRA strongly emphasizes brush management to improve

TCEQ/TSSWCB joint publication SFR-68/04 129 vegetative cover that reduces erosion, increases land productivity, filters groundwater, and enhances wildlife habitat. In recent decades, the spread of invasive brush species, particularly cedar and mesquite, over Central Texas rangelands has choked out native grasses and plants that benefit water quality and quantity.

Local Soil and Water Conservation Districts (SWCDs) help landowners with project planning in the Colorado River basin. The local office of the USDA-NRCS selects potential sites and qualified landowners to participate in the Creekside Conservation Program. Local SWCDs approve the projects and submit them to LCRA for final approval. Upon completion of the project, the landowner is reimbursed for up to half of the cost of the conservation project. The NRCS and LCRA staff monitor success of each project on an annual basis.

Silvicultural Management Texas has more than 23 million acres of forested land. Half of this area, roughly 11.8 million acres, is considered commercial timberland. Most streams that originate or flow through these timberlands are sources of water supply, prime recreation, and other high quality uses. Because of this, forest management programs have been developed to implement adequate measures to protect water quality. Below is a discussion of some of the programs in place to address the nonpoint source problems resulting from silvicultural activities.

The Texas Forest Service Resource Development Program The Texas Forest Service (TFS) resource development program provides professional assistance to non-industrial private landowners, including services such as, development of forest management plans, assistance in implementation of reforestation and timber stand improvement practices, prescribed burning, and fireline plowing. It administers several state and federal cost share programs which promote reforestation and stewardship. Emphasis is placed on developing the state's timber resource in an environmentally sound manner to meet present and future needs.

The Forest Stewardship Program The Forest Stewardship Program (FSP), a USDA Forest Service program, provides technical assistance, through State forestry agency partners, to nonindustrial private forest (NIPF) owners. The program encourages and enables active long-term forest management. A primary focus of the program is the development of comprehensive, multi-resource management plans that provide landowners with the information they need to manage their forests.

130 TCEQ/TSSWCB joint publication SFR-68/04 The Forest Land Enhancement Program The Forest Land Enhancement Program (FLEP), administered by the USDA Forest Service, is a voluntary program that provides technical, educational, and cost-share assistance to non-industrial private forest (NIPF) landowners. Eligible landowners must have an approved Forest Stewardship Plan.

Pollution Prevention The key to controlling nonpoint source pollution is often prevention. Preventing contaminants from reaching water in the first place mitigates environmental risks from pollution and eliminates the need for expensive clean-up programs. Community, business, and citizen involvement are integral to successful pollution prevention. There are many simple day to day activities citizens can do to prevent pollution. Educating citizens about what those activities are and implementing prevention programs can be accomplished on a larger scale by federal, state, or local government programs. Following is a discussion of several programs that work with citizens, businesses, and industry to encourage voluntary implementation of pollution prevention activities.

The Site Visit Program The TCEQ offers free, confidential on-site environmental compliance assessments (site visits) to local government facilities and independently owned and operated businesses with 100 or fewer total employees. After a site visit, the facility operator receives a report from the consultant outlining environmental compliance deficiencies and a copy of the consultant's compliance checklist. The consultant will provide specific recommendations on how the facility can achieve full compliance and possibly reduce regulatory burden.

The Small Towns Environment Program The Texas Small Towns Environment Project (STEP) was designed to assist small towns, unincorporated communities, subdivisions, colonias, or clusters of homes with urgent drinking and wastewater problems. The TCEQ provides technical assistance and support to community leaders and residents who are willing to solve problems through self-help. Texas STEP agents work collaboratively with community residents to pull together local resources to initiate a drinking water and/or wastewater project. The Texas STEP is a partnership between the TCEQ, Texas Department of Housing and Community Affairs, the DSHS, TWDB, and GLO with support from the national Small Towns Environment Program of the Rensselaerville Institute.

TCEQ/TSSWCB joint publication SFR-68/04 131 The Texas Country Cleanup Program The TCEQ, in cooperation with TCE and TDA, conducts free, one-day collections at 30-40 locations across the state annually for citizens in rural and agricultural communities to bring materials for recycling or disposal. Texas Country Cleanups offer residents recycling opportunities for materials specific to rural and agricultural materials. The materials accepted in these collections include triple-rinsed empty pesticide containers, used motor oil, used oil filters, and lead-acid batteries.

Supplemental Environmental Projects Supplemental Environmental Projects (SEPs) prevent or reduce pollution, enhance the quality of the environment, and increase environmental public awareness. The SEP program, administered by the TCEQ, provides the opportunity for the respondent in an enforcement action to negotiate an agreement to perform an SEP in return for a reduction in administrative penalties. Potential SEPs include cleanup of abandoned illegal dump sites; community household hazardous waste collections; purchase of Water Wise kits for local schools; and on-site pollution prevention projects that exceed regulatory requirements.

The Clean Texas Program The Clean Texas Program is a voluntary environmental leadership program to protect the state's air, water, and land. The program offers benefits and incentives to members who commit to improving the environment and sustaining a quality of life for future generations. The Clean Texas Program is open to industries, businesses, cities, counties, schools, universities, military bases, nonprofit groups, and other organizations. Clean Texas Program "partners" make commitments to measurable environmental improvement goals, internal environmental programs, and community environmental outreach programs or projects. Clean Texas Program "leaders" make these same commitments and in addition, pledge to implement a system to assure compliance and continuous improvement (environmental management system, strategic plan, business plan), a community communication program, and a system to review and measure the environmental impact of products, processes, and community services (product stewardship program).

Oil and Gas Waste Minimization Program The Oil and Gas Waste Minimization Program, administered by the Railroad Commission of Texas (RRC), offers assistance to oil and gas operators interested in minimizing wastes through source reduction and recycling of oil and gas wastes. The RRC's program includes several products and services, including a manual, workshops, technology transfer, waste minimization planning software, a newsletter, and on-site assistance.

132 TCEQ/TSSWCB joint publication SFR-68/04 Texas Chemical Council The Texas Chemical Council (TCC) is a statewide trade association of chemical manufacturing facilities in Texas. The TCC represents the Texas chemical industry in environmental protection, health and safety issues, tort reform, and energy policy. As a partner in the TCEQ Clean Texas program, the Texas Chemical Council (TCC) encourages all its member companies to participate as program members, committed to fulfilling the requirements of membership. The TCC and its member companies strive to conserve natural resources, cultivate environmentally responsible business activities, foster product stewardship, and handle waste responsibly. The TCC supports other environmental goals such as recycling and the protection of vital habitats, wetlands, and endangered species.

Protection for Drinking Water Sources Many Texans get their drinking water from large scale municipal water systems that rely on surface water resources, such as rivers, lakes, and reservoirs. Others depend on private sources, such as wells and aquifers. Contamination can occur in surface or groundwater supplies from wastewater discharges, urban and agricultural runoff, leaking underground storage tanks, improperly maintained on-site sewage facilities, waste sites, abandoned wells, and deposition of airborne pollutants. The State of Texas pays special attention to protecting surface and ground water supplies that serve as a source of drinking water. Protecting drinking water at the source makes good public health, economic, and environmental sense. Below is a discussion of the state programs that focus on the protection of drinking water sources.

Underground Injection Control Underground Injection Control (UIC) involves the protection of underground sources of drinking water (USDW) through the regulatory oversight of injection wells. Given the broadest interpretation for statutes covering Underground Injection Control (UIC), any water could be determined to be fresh water provided it has beneficial use. The UIC program interprets "fresh water" as water with 10,000 mg/l or less Total Dissolved Solids (TDS), with the understanding that the broader statutory definition may be strictly applied whenever necessary to protect water containing greater than 10,000 mg/l TDS (30 TAC §331.2).

The TCEQ's authorized UIC program has elected to not specifically designate or geographically delineate aquifers as underground sources of drinking water. Any aquifer or portion thereof that fits the definition is considered an underground source of drinking water (USDW), even if not affirmatively identified as such by the agency.

TCEQ/TSSWCB joint publication SFR-68/04 133 Injection wells are divided by class; specifically, Class I through Class V. In Texas, regulatory responsibility for the subsurface injection of fluids and waste lies with either the Railroad Commission of Texas (RRC) or the TCEQ, depending mainly on the class of injection well, the intended use of the well, or in the case of Class III wells, the mineral to be mined.

# Class I - hazardous wastes injected beneath the lowermost formation containing an USDW. All Class I wells are regulated by the TCEQ through injection well permits. # Class II - "oil and gas waste", including salt water. All Class II wells are regulated by the RRC through injection well permits. # Class III - extraction of minerals, exclusive of oil and natural gas (uranium, sodium sulfate (potash), brine and sulfur. Brine injection wells are regulated by the RRC through permits, all other Class III injection wells under TCEQ. # Class IV -hazardous wastes into or above a formation which contains an USDW within one-quarter mile of the wellbore. Class IV injection wells are generally prohibited by the TCEQ rules (30 TAC §331.6). # Class V - Miscellaneous injection wells that are not Class I, II, III, or IV wells, or single family residential cesspools or septic system disposal wells. Wells used for in-situ combustion of fossil fuels and geothermal wells are under the jurisdiction of the RRC. Aquifer storage and recovery wells, subsidence control wells, salt water intrusion barrier wells; air conditioning return flow wells; drainage wells; some septic system wells; cesspools; dry wells used to inject nonhazardous wastes other than domestic sewage into the unsaturated zone; and sand backfill wells used to reclaim some mines are under the jurisdiction of TCEQ.

For those facilities which handle hazardous waste, surface facilities are permitted separately by the TCEQ, under the authority of the Texas Solid Waste Disposal Act (Health and Safety Code, Chapter 361), and/or the federally delegated Resource Conservation and Recovery Act (RCRA) program. Strict application review procedures, and following monitoring and inspection programs by both the TCEQ and the Railroad Commission of Texas help prevent non-point source contamination of usable groundwater by salt water and non-hazardous wastes.

The Source Water Assessment and Protection Program The TCEQ Source Water Assessment and Protection (SWAP) program was created in 1996 by the Safe Drinking Water Act. SWAP combines source water assessment (SWA) and source water protection (SWP).

134 TCEQ/TSSWCB joint publication SFR-68/04 Source Water Assessments The Source Water Assessment (SWA) assesses a Public Water Supply system's susceptibility to 227 potential drinking water contaminants. Specific elements scrutinized include location, intrinsic characteristics, contaminant occurrence, point and nonpoint source pollution, and construction. These elements are compared with several hundred thousand database records to produce a technically defensible assessment product. The goal of the SWA component leads to local Source Water Protection (SWP) implementation.

A source water assessment report has been provided to each of 6,000 public water systems (PWS) and is intended to lead to the implementation of source water protection projects and BMP implementation. The source water assessments are used by the TCEQ SWAP program to drive the prioritization and implementation of Source Water Protection (SWP) activities, and the recommended best management practices (BMPs) aimed at minimizing or eliminating the affects of NPS contaminants.

Source Water Protection Source Water Protection (SWP) is a voluntary, pollution prevention program implemented at the local level. All public water supply systems are eligible to participate in the program. The TCEQ provides technical assistance and guidance to local Public Water Supply systems that implement recommended BMPs. The TCEQ coordinates BMP recommendations or implementation with other agencies/organizations with expertise and/or jurisdiction. These BMPs include signs to increase public awareness, educational programs, site-specific protection plans, and local ordinances. The TCEQ recommends communities participating in the program voluntarily implement BMPs based on results of potential contaminant source inventories. Most SWP participants have implemented programs by working cooperatively with community members and through public education programs. Costs associated with implementing a SWP program are much lower than cleaning up a contaminated water source. Implementation costs are eligible for funding through the Texas Water Development Board’s Drinking Water State Revolving Fund loan program.

For over fifteen years, TCEQ has used funds from the NPS Program to fund source water protection activities. Additionally, information developed for the NPS Program serves as valuable information and data about land-based contamination sources which provide valuable input into the source water assessment process. An example of this coordination is the Regional Aquifer Protection Programs (i.e., Edwards Aquifer) which has provided a wealth of data for TCEQ’s assessment and protection activities.

The hallmark of Source Water Protection is to identify a PWS’s water source, sensitive contributing areas, possible sources of contamination

TCEQ/TSSWCB joint publication SFR-68/04 135 (PSOCs), and recommend BMPs to eliminate or minimize the threat of contamination. These recommendations often advocate the involvement of other agencies/organizations having relevant expertise and/or jurisdiction to provide increased public awareness, educational programs, site-specific protection plans (i.e. TMDL-IPs, WPPs), and local ordinances.

Most SWP participants have implemented their programs by working cooperatively with community members and providing public education. The costs for implementing a SWP program are minimal and dramatically less than remediating contaminated drinking water.

Aquifer Protection In addition to programs already identified in this document, multiple agencies have responsibilities related to protecting the groundwater in the state from impacts from NPS pollution. Groundwater is water that occurs beneath the land surface in porous or fractured rock and sediments. Groundwater is a major source of the water used by Texans for domestic, municipal, industrial, and agricultural purposes.

Vulnerability of an aquifer to contamination has two components: the environmental pathway that a contaminant would take to reach the groundwater, and the source and type of contaminants that result from activities conducted above the aquifer. Aquifer vulnerability is related to the physical, hydrological and biological characteristics of the soil, the unsaturated (non-water producing) upper portion of the aquifer and the water-bearing portion. Characteristics such as permeability and processes such as natural attenuation affect the movement and alteration of contaminants. These characteristics vary greatly among aquifers in Texas, such that aquifers have different vulnerabilities to contamination. Different parts of the same aquifer may have different vulnerabilities. The potential for impact on an aquifer is dependent on what activities are occurring above an aquifer or in its recharge zone.

Groundwater contamination occurs principally in heavily populated areas of the state, such as Houston, Dallas, Fort Worth, San Antonio, and El Paso. Petroleum storage tank facilities are the largest category of contamination sources, but other regulated surface activities have resulted in contamination as well. The following is a discussion of some of the programs in place to protect the aquifers of the state.

The Texas Groundwater Protection Committee The Texas Groundwater Protection Committee (TGPC) is an interagency committee that was created by the Texas Legislature in 1989 to bridge the gap between state groundwater programs and optimize groundwater quality protection by improving coordination among agencies involved in groundwater protection activities. The TCEQ is designated as the lead

136 TCEQ/TSSWCB joint publication SFR-68/04 agency for the committee and provides administrative support for its activities.

The TCEQ partners with the Railroad Commission of Texas (RRC), Texas Department of State Health Services (DSHS), Texas Department of Agriculture (TDA), TSSWCB, Texas Alliance of Groundwater Districts (TAGD), Texas Agricultural Experiment Station (TAES), Bureau of Economic Geology (BEG), and the Texas Department of Licensing and Regulation (TDLR). The committee works to effectively manage and protect Texas groundwater. The TGPC works on special issues through subcommittees composed of committee members and the general public.

The Nonpoint Source Subcommittee is an important mechanism for the TGPC to implement and evaluate NPS activities. Recognizing the dangers to human health and groundwater quality that abandoned water wells pose, for example, the TGPC initiated efforts to develop educational materials to promote low-cost, landowner-initiated closure (capping or plugging) of abandoned water wells through the Abandoned Water Well Closure Task Force, a sub-group of the Non-Point Source Subcommittee.

The Agricultural Chemicals Subcommittee is another group within TGPC that is concerned with NPS impacts resulting from the legal use of chemicals to control insect and animal pests and unwanted vegetation. The Agchem Subcommittee has produced the Texas State Management Plan for Prevention of Pesticide Contamination of Groundwater, (TCEQ, 2001, SFR-070/01), which describes the general policies and regulatory approaches the State will use in order to protect groundwater resources from risk of contamination by pesticides. The document describes a generic coordinating mechanism among all responsible and participating agencies during the implementation of the plan, and provides for specific responses when they are deemed necessary.

Underground Storage Tank Installer Licensing Program Any entity who engages in the business of underground storage tank installation, repair, or removal in Texas, must be registered with the TCEQ as an Underground Storage Tank (UST) contractor. Individuals who supervise the installation, repair, or removal of an underground storage tank must be licensed by the TCEQ as a Type "A" UST installer on-site supervisor, and any individual who supervises the permanent removal of a UST system must be licensed as a Type "B" UST remover on-site supervisor.

Texas Department of Licensing and Regulation The Texas Department of Licensing and Regulation (TDLR) is charged to protect ground water quality through the licensing of well drillers and assuring well construction standards are enforced. A Water Well Driller is defined as any individual who drills, bores, cores, or constructs a water

TCEQ/TSSWCB joint publication SFR-68/04 137 well. A driller may include an owner, operator, contractor, or drilling supervisor. The program has a mandatory apprenticeship which requires all applicants to have at least two years of drilling experience before taking the licensing exam. TDLR has the power to suspend or revoke licenses and set administrative penalties for incompetence or violations of any section of Texas Occupation Code Chapters 1901 and 1902 or any rule.

The Texas Legislature expanded the Water Well Driller functions to include pump installers that repair wells after they have been drilled. Pump Installers install and repair well pumps and equipment, locate and survey abandoned wells, and repair existing wells. Regulation of this function provides a mechanism to ensure that surface casing is completed on wells that were drilled before the rules on surface casing existed to prevent contamination of drinking water sources by improperly sealed wells.

Numerous state and local programs have identified abandoned water wells as having a significant, or potentially significant, negative impact on groundwater quality in the state. Abandoned water wells exist in every county and impact all of the state's aquifers. It is conservatively estimated that 150,000 of the wells drilled since 1965 are abandoned or deteriorated. Abandoned water wells not only serve as conduits or channels for contamination to reach groundwater, but large diameter wells can also be a hazard to human and animal life. In addition, uncapped, non-cemented, deteriorated or uncased wells completed in more than one water-bearing zone may allow poorer-quality water from one zone to co-mingle and impact the other(s). Abandoned municipal, industrial, irrigation wells and abandoned rig-supply, domestic or livestock wells, and unplugged test-holes also pose threats to groundwater quality.

State law requires landowners, who possess an abandoned or deteriorated well, to have the well plugged or capped under TDLR standards. The landowner is liable for any water contamination or injury due to such wells. The Abandoned Well Notification and Compliance Program, administered by the TDLR, compiles, identifies, and processes abandoned water well notification and enforcement cases. The TDLR can assess administrative and civil penalties against persons who do not comply with the provisions. Some groundwater conservation districts are implementing well-capping and plugging programs of their own.

Additionally, the Water Well Driller/Pump Installer Program provides advisories to water well drillers for areas with contaminant plumes or undesirable water quality. These advisories help water well drillers avoid impacting usable groundwater by unknowingly drilling through contaminated zones in the areas specified. Drillers are advised to case off and pressure grout those zones to prevent contaminant migration - another form of NPS pollution.

138 TCEQ/TSSWCB joint publication SFR-68/04 Edwards Aquifer Protection Program The State of Texas contains only one designated sole-source aquifer, the Edwards Aquifer found in the central and south central portion of the state. The Edwards Aquifer is an arcuate band of limestone and associated formations that stretch from Bell County through Williamson, Travis, Hays, Comal, Bexar, Medina and Uvalde counties, finally terminating in Kinney County. All of these counties, except Bell, are subject to TCEQ rules promulgated to protect the quality of groundwater within the aquifer.

The rules are the basis of the Edwards Aquifer Protection Program, administered by TCEQ's Field Operations Division staff in the Austin and San Antonio Regional Offices. The program requires anyone who plans to build on the recharge, transition, or contributing zones of the Edwards Aquifer, to first have an application, including construction plans, approved by the TCEQ. Staff in the regional offices review these plans. After a plan is approved, the site is monitored for compliance.

The rules are intended to mitigate NPS and point source impacts from regulated development over the recharge zone, transition zone and contributing zone of the Edwards aquifer, and, depending on location and type of development, may require any or all of the following:

# A water pollution abatement plan (WPAP) for any regulated activity proposed on the Edwards Aquifer recharge zone. This includes any construction-related activity on the recharge zone, such as, but not limited to, the construction of buildings, utility stations, roads, highways, railroads; clearing, excavation, or any other activities that alter or disturb the topographic, geologic, or existing recharge characteristics of a site; or any other activities which may pose a potential for contaminating the Edwards Aquifer and hydrologically connected surface streams. # An organized sewage collection system (SCS) plan for any public or private sewerage system for the collection and conveyance of sewage to a treatment and disposal system that is regulated pursuant to rules of the commission and provisions of Chapter 26 of the Texas Water Code. A system includes lift stations, force mains, gravity lines, and all appurtenances necessary for conveying wastewater from a generating facility to a treatment plant. # An underground storage tank (UST) facility plan for the installation or replacement of underground storage tanks or piping on either the recharge or transition zones of the Edwards Aquifer. In particular, storage tank (aboveground or underground) facilities that will store 500 gallons or more of static hydrocarbons or hazardous substances are regulated.

TCEQ/TSSWCB joint publication SFR-68/04 139 # An aboveground storage tank (AST) facility plan for the installation of permanent aboveground storage tanks at a facility that will have a total capacity of 500 gallons or more on either the recharge or transition zones of the Edwards Aquifer. In particular, ASTs that will store static hydrocarbons or hazardous substances are regulated.

Environmental Permitting Programs The TCEQ, RRC, DSHS, and other regulatory agencies are responsible for permitting various activities ranging from application of pesticides to wastewater discharge. All of these permitting programs contain some form of NPS pollution prevention requirements, whether in the form of BMPs or through monitoring.

TCEQ's Wastewater Permitting program, for example, routinely issues "no discharge" permits for facilities disposing of treated wastewater effluent via irrigation or evaporation. The effluent disposal sites must meet certain criteria to insure that groundwater and surface water are not impacted by percolation of contaminants or runoff from application areas. Permits require facilities to monitor groundwater quality, sample soils for nutrient and salt loading, and provide information on the uptake of contaminants by cover crops in order to prevent contamination. Similar requirements are made for sites handling or disposing of post-treatment wastewater sludge, wastes from permitted confined animal feeding operations and wastes from drinking water treatment facilities.

TCEQ permits for industrial and hazardous waste generators and management units, and municipal solid waste disposal facilities contain provisions designed to protect groundwater and surface water from the effects of small levels of contaminants that may escape from a facility. This provisions include pond linings, numerous monitoring points, filter strip areas, leak detection systems for production piping and other measures.

The RRC establishes oil and gas well construction and plugging standards, and requires a letter from TCEQ that establishes the location of the base of usable quality groundwater. Wells must be constructed and plugged in such a manner that the usable quality groundwater is protected from contaminants that may migrate during the life of the well. In addition, RRC authorizations by rule and permits for storage, management and disposal of oil and gas waste, include requirements for pit liners, sampling and monitoring, and runoff control.

Texas Department of State Health Services (DSHS), Bureau of Radiation Control (BRC) regulates radioactive materials, including uranium recovery and radioactive waste disposal. The BRC monitors groundwater for radionuclides on a routine basis at several facilities. Additionally, BRC

140 TCEQ/TSSWCB joint publication SFR-68/04 regulates receipt, possession, storage, use and treatment of NORM (Naturally Occurring Radioactive Materials).

The Railroad Commission of Texas—Oil and Gas Well Plugging Program The RRC has long been active in regulating the exploration, development and production of oil and gas in Texas, which includes protecting the environment and maintaining public safety. The RRC began regulating oil and gas exploration and production operations in 1919 and over time has adopted increasingly stringent plugging standards and procedures. Statutes to prevent pollution from unplugged wells have also been modified over the years to increase RRC authority in this area.

The RRC has utilized the Oil Field Clean Up (OFCU) Fund to plug over 15,000 wells, however, thousands of additional abandoned wells remain. To ensure effective and efficient use of the OFCU Fund, the RRC has implemented a well plugging priority system to plug the wells that pose the greatest risk to the environment. The OFCU Fund is supported entirely by fees, penalties, and other payments collected from the oil and gas industry. The RRC has also been working with the TCEQ to utilize Clean Water Act CWA§319(h) grant funding to reduce chloride and total dissolved solids levels in several watersheds.

Wetlands Protection Wetlands are generally considered as a transition zone between land and water where the soil is occasionally or permanently saturated with water. Wetlands are populated with plants that are specially adapted to grow in standing water or saturated soils. There are many different types of wetlands, including marshes, bogs, swamps, mangroves, prairie playas, and bottomland hardwood forests. Wetlands may not always appear to be wet. Many wetlands dry out for extended periods of time. Other wetlands may appear dry on the surface but are saturated with water beneath the surface.

Saltwater wetlands fringe estuaries; freshwater wetlands border streams, rivers, and reservoirs or occur in isolation. Generally, wetlands improve water quality, provide critical habitat for a wide variety of fish and wildlife, provide storage for flood waters, and stabilize shorelines. Wetlands filter nutrient and sediment from water before it enters adjacent water bodies and underlying groundwater aquifers.

Wetlands can be physically destroyed by filling or dewatering. Wetlands can also be damaged by the same pollutants that degrade other water bodies, such as nutrients, toxic substances, and oxygen demanding wastes. Below is a discussion of some of the programs in place to protect this precious resource.

TCEQ/TSSWCB joint publication SFR-68/04 141 The Wetlands Reserve Program The Natural Resource Conservation Service (NRCS) administers the Wetlands Reserve Program (WRP). The Wetlands Reserve Program is a voluntary program that provides technical and financial assistance to eligible landowners to address wetland, wildlife habitat, soil, water, and related natural resource concerns on private land in an environmentally beneficial and cost effective manner. The program provides an opportunity for landowners to receive financial incentives to enhance wetlands in exchange for retiring marginal land from agriculture.

The Texas Wetlands Conservation Plan Ninety-seven percent of Texas' land is privately owned and managed. Management decisions on these lands are made by private landholders. Economics often dictate what these management strategies will be. The Texas Wetlands Conservation Plan focuses on providing private landowners with information to assist them in making informed, economically beneficial management decisions, which will protect wetland functions and maximize the benefits that wetlands provide. Development of the Wetlands Conservation Plan was coordinated by the Texas Parks and Wildlife Department (TPWD) and is intended as a guide for wetlands conservation efforts throughout the state.

The Texas Wetlands Conservation Plan, initiated in 1988 and last updated in 1997, focuses on non-regulatory, voluntary approaches to conserving Texas' wetlands. It has three major goals: to enhance the landowner's ability to use existing incentive programs and other land use options through outreach and technical assistance; to develop and encourage land management options that provide an economic incentive for conserving existing or restoring former wetlands; and to coordinate regional wetlands conservation efforts.

Wetland issues addressed in the Plan fall into five general categories: education; economic incentives; statewide and regional conservation; assessment and evaluation; and coordination and funding. The Plan, in addition to providing general information and goals, highlights many specific recommendations to enhance wetlands conservation in Texas. To date, a shortage of funding has slowed implementation of recommendations identified in the Plan.

Wetlands Planning Efforts in Texas Wetlands planning in Texas has been influenced by opportunities and requirements initiated at the national, state, and local levels. Many public and private sector organizations and individuals in Texas are involved in wetlands conservation and regulation. Each organization has a unique focus, which may include regulation, technical assistance to landowners, funding or land restoration sites. Alone, individual entities are often

142 TCEQ/TSSWCB joint publication SFR-68/04 ill-equipped to meet wetlands conservation opportunities and challenges. However, together they form a web of conservation opportunities. Several planning efforts are working at the state level to address different aspects of wetlands management and planning.

Seagrass Conservation Plan The Seagrass Conservation Plan was developed to address seagrass problems in Texas over the next ten years. The TCEQ, GLO, and TPWD endorsed conservation goals for the Seagrass Plan, which include defining seagrass research needs, addressing management concerns, and expanding environmental awareness in citizens through education.

Conservation Plan for State-Owned Coastal Wetlands The State Wetlands Conservation Plan for State-Owned Coastal Wetlands provides protection through specific actions for state-owned coastal wetlands. The TPWD and the GLO, with assistance from other agencies, are jointly developing this legislatively required plan. Eighteen specific items/actions must be included in the plan. Some of these actions include a goal of no overall net loss of state-owned wetlands, wetland mitigation policies, a requirement for freshwater inflows to estuaries, a navigational dredging and disposal plan, education and research regarding boating in wetlands, the reduction of nonpoint source pollution, improved coordination among federal and state agencies, and a plan to acquire coastal wetlands.

Local Government Wetlands Plan The Local Government Wetlands Plan is a demonstration project that will incorporate the tools contained in Texas Coastal Wetlands: A Handbook for Local Governments. The GLO will form a partnership with a local government to develop a local wetlands plan.

Wetlands Assistance for Landowners In 1995, a "Wetlands Assistance Guide for Landowners" was published which describes the programs, regulations and conservation options that affect landowners in Texas. The Landowner's Guide summarizes existing state, federal and private programs which provide financial and technical assistance for wetlands protection. Other topics discussed include an assessment of landowner options for wetlands protection, a summary of existing state and federal regulations affecting wetlands, a list of contacts, and a description of the roles of state and federal agencies which are involved in wetlands regulation and management.

Coastal Programs High freshwater inflows tend to frequently flush the estuaries of the upper coast. Lower coast estuaries have low freshwater inflows and high residence times for natural and man-made pollutant inputs. Pollutants

TCEQ/TSSWCB joint publication SFR-68/04 143 from both local and distant sources tend to accumulate in estuaries. Most pollutants that enter streams and rivers eventually migrate toward the coast. As rivers approach the coast, their mouths broaden and stream velocity decreases. The reduction in stream velocity and fluctuation of tides from the Gulf reduce flushing and entrap nutrients and pollutants at the head of estuarine waters. This natural trapping process establishes the basis for highly productive estuarine ecosystems, but also makes estuaries vulnerable to excessive pollutant loading. Thick clay soils, which persist throughout the coast except for areas directly adjacent to large rivers, prevent the exchange of surface and groundwater.

Rural and agricultural lands comprise almost half of the total land use/land cover within the coastal management area. The upper Texas coast's heavy rainfall and thick clay soils support rice cultivation. As rainfall declines further south, dryland row crops of cotton and grain sorghum dominate Estuaries are coastal waters where the agricultural scene. Extensive inflowing stream or river water mixes irrigation systems in the Lower Rio with, and measurably dilutes, sea water. Grande Valley support such diverse In Texas, estuaries are the lower tidal crops as citrus, vegetables, sugar portions of rivers and streams that cane, and aloe vera. directly enter the Gulf of Mexico or its bay systems. Estuaries serve as important nurseries for many The Texas coast houses half the commercial fish and shellfish nation's petrochemical industry and populations, including shrimp, oysters, more than a quarter of its refining crabs, and scallops. capacity. There are four major urban and industrial centers on the Texas Coast: Beaumont-Port Arthur-Orange; Houston-Galveston; Corpus Christi; and the Lower Rio Grande Valley. In addition to dense urban and suburban development, significant oil refining and associated petrochemical industry infrastructure exist in the first three areas. The Rio Grande Valley is primarily a year-round agricultural center which is experiencing explosive population growth due to its proximity to Mexico and an improved economy in response to the North American Free Trade Agreement.

The steady growth of industry, as well as burgeoning marine commerce, agriculture, commercial and recreational fishing, and a thriving tourist trade, has intensified competition for coastal resources. Continued economic and population growth are projected for the Texas Coast, and as population and development increase, so do waste generation, environmental degradation, and the risks of damage to natural systems.

The coastal areas of Texas have to deal with the same nonpoint source pollution issues as the rest of the state, in addition to beach erosion, salinity, and protection of important coastal estuarine and wetland habitats. The following programs are specific to nonpoint source management along the Texas Coast.

144 TCEQ/TSSWCB joint publication SFR-68/04 The Texas Coastal Management Program/Coastal Coordination Council The Texas Coastal Management Program (CMP) was created to coordinate state, local, and federal programs for the management of Texas coastal resources. The program brings in federal Coastal Zone Management Act (CZMA) funds to Texas state and local entities to implement projects and program activities for a wide variety of purposes. The Coastal Coordination Council (CCC) administers the CMP and is chaired by the Commissioner of the GLO. It is comprised of the chair or appointed representatives from the TPWD, the TCEQ, the TWDB, TxDOT, a member of the State Soil and Water Conservation Board, a member of the RRC, the director of the Texas A&M University Sea Grant Program and four gubernatorial appointees. These members are selected to provide fair representation for all aspects concerning coastal issues.

The Council is charged with adopting uniform goals and policies to guide decision-making by all entities regulating or managing natural resource use within the Texas coastal area. The Council reviews significant actions taken or authorized by state agencies and subdivisions that may adversely affect coastal natural resources to determine their consistency with the CMP goals and policies. In addition, the Council oversees the CMP Grants Program and the Small Business and Individual Permitting Assistance Program.

The Coastal Zone Act Reauthorization Amendments (CZARA), §6217, requires each state with an approved coastal zone management program to develop a federally approvable program to control coastal nonpoint source pollution. The Texas CCC appointed a Coastal Nonpoint Source Pollution Control Program workgroup to develop this document.

On April 7, 2003, the National Oceanic and Atmospheric Administration (NOAA) recommended conditional approval of the Texas Coastal Nonpoint Source Pollution Control Program. The document discusses the coastal nonpoint source management area; an overview of program implementation and coordination; presentation of specific nonpoint source categories, the §6217 management measures, and the state rules and programs which address pollution sources and meet the federal requirements; information on additional management measures, technical assistance, and public participation; and program monitoring and evaluation.

Coastal Nonpoint Source Program The Coastal NPS Program for Texas has been under development since 1997. To facilitate the development of the NPS Program, the Coastal Coordination Council established a subcommittee comprised of staff from the General Land Office, Texas Commission on Environmental Quality,

TCEQ/TSSWCB joint publication SFR-68/04 145 Texas Railroad Commission, Texas Department of Transportation, Texas Parks and Wildlife Department, Texas State Soil and Water Conservation Board, and a public member from the Council. This subcommittee has addressed comments submitted by the National Oceanic and Atmospheric Administration (NOAA) and the Environmental Protection Agency (EPA) regarding Texas' Coastal NPS Program, reviewed and recommended proposed NPS pollution control projects, and researched possible options to enhance the program.

In December 1998, Texas submitted its Coastal NPS Program to NOAA and EPA. After two and a half years of discussion between Texas and the federal agencies, NOAA and EPA published in the Federal Register, in late September 2001, their intent to approve the Texas Coastal NPS Program with certain conditions. NOAA and EPA identified six areas that Texas must strengthen or correct prior to receiving full approval of the Coastal NPS Program. (Table 6.1)

The second notice to conditionally approve Texas' Coastal NPS Program was posted in the Federal Register on April 7, 2003. The Final Conditional Approval Letter was received on July 9, 2003. Texas was given five years to meet the remaining conditions.

Texas continues to seek full approval by addressing the remaining conditions in the Final Conditional Approval Letter. The Texas Coastal Coordinating Council is preparing responses to EPA and NOAA to address these conditions and will continue to negotiate with EPA and NOAA for full approval. Texas anticipates full approval of the Texas Coastal NPS Management Program by July 9, 2008, and full implementation of this program by July 9, 2018.

Table 6.1. Texas Coastal NPS Management Program. Remaining Conditions and Anticipated Year of Condition Resolution Projected Approval Year EPA/NOAA Condition 2005 2006 2007 2008

New Development and Existing Development X Site Development X Watershed Protection X New and Operating Onsite Disposal Systems X Roads, Highways, and Bridges X Hydromodification X

146 TCEQ/TSSWCB joint publication SFR-68/04 The National Estuary Program The National Estuary Program (NEP) was established under §320 of the Clean Water Act to "identify nationally significant estuaries which are threatened by pollution, development, or overuse; promote comprehensive planning for, and conservation and management plans for estuaries of national significance; and enhance the coordination of estuarine research." There are two active estuary programs in Texas. The first was established for the Galveston Bay system and the second was established for the bays and estuaries along the Coastal Bend of South Texas. Each of these estuary programs developed a Comprehensive Conservation and Management Plan (CCMP) which recommends priority actions and implementation schedules to address impacts observed in the estuary. The CCMP development is a concensus-based process involving a partnership across federal, state, and local levels. With the completion of the CCMPs, each National Estuary Program formed a nonprofit, nonregulatory management structure to implement its plan.

Galveston Bay Estuary Program The Galveston Bay Estuary Program (GBEP) is a continuation of the National Estuary Program (NEP) established for Galveston Bay in 1989. The Galveston Bay Estuary Program is a partnership of bay stakeholders currently working to implement the Galveston Bay Plan. The plan contains action plans dealing with habitat and species protection, freshwater inflows, spills and dumping, exotic species, point sources of pollution, and nonpoint sources of pollution to protect and restore the health of the estuary, while supporting economic and recreational activities. Eighty-two initiatives are outlined under these nine action plans. The GBEP takes a leading role in facilitating and coordinating the implementation of these initiatives.

Nonpoint source pollution is the number one identified water quality problem in Galveston Bay. Implementation of the Galveston Bay Plan includes the following actions to address this problem: developing and implementing a Galveston Bay public education program aimed at reducing pollution from residential areas; compiling a Galveston Bay BMP Performance Document to inventory nonpoint source control techniques which have been evaluated; identifying and correcting priority watershed pollutant problems by maintaining and publishing an inventory of nonpoint source concerns in the bay watershed; adopting regional construction standards for nonpoint source reduction and implementing toxics and nutrient control practices; encouraging sewage pumpout, storage, and provisions for treatment; and implementing storm water programs for local municipalities.

To date, the GBEP has addressed nonpoint source pollution by convening a forum for information sharing among Galveston Bay stakeholders involved in nonpoint source pollution prevention/control activities,

TCEQ/TSSWCB joint publication SFR-68/04 147 providing technical assistance to local and county governments, and educating and reaching out to children and adults. The GBEP partners with the Houston-Galveston Area Council, the Galveston County Health District, the Galveston Bay Foundation, and the Texas A&M Sea Grant Program to provide technical assistance on stormwater management to local governments; provide technical assistance to small businesses on implementation of waste minimization strategies and general best management practices; develop, maintain, and publish an inventory of nonpoint source concerns in the bay watershed; implement a baywide public education program aimed at reduction of pollution from residential areas through illustration, presentations, and workshops; and to conduct voluntary inspections and provide information assistance to reduce bacterial pollution caused by malfunctioning septic systems.

Coastal Bend Bays & Estuaries Program The TCEQ and EPA helped establish the Coastal Bend Bays & Estuaries Program (CBBEP) to develop and implement a plan to protect and restore the bays and estuaries of the Texas Coastal Bend. The CBBEP has developed a Comprehensive Conservation and Management Plan to deal with a wide array of problems ranging from public health and education, freshwater flow, and loss of natural habitats. The CBBEP has implemented the following actions to protect bays and estuaries from nonpoint source pollution:

# A regional handbook of urban nonpoint source pollution BMPs for voluntary use by local governments seeking to implement nonpoint source pollution programs. # Compliance assistance to small business and industries in the region which are subject to NPDES permit program or have nonpoint source controls needs. # Assistance to local governments to implement on-site sewage facility programs. # Coordinate and implement agricultural water quality management programs necessary to meet water quality standards.

Coastal Habitat Restoration Texas Parks and Wildlife Department has an active program to restore wetlands along the Texas Coast. These marsh creation projects establish intertidal marsh with emergent plants along bay shorelines that are suffering from severe erosion. These created marshes buffer shorelines from erosion and remove both sediments flowing into the bays and sediments that have been re-suspended by storms. These wetlands also help remove nutrients from stormwater runoff. These newly created and restored marshes provide habitat for a wide variety of ecologically and economically important marine life. Typically these restoration projects involve multiple local, state, and federal partners. Citizens also assist by

148 TCEQ/TSSWCB joint publication SFR-68/04 replanting the marshes. Including citizens increases awareness of the value of these marshes.

The BEACH Act In October 2000, the U.S. Congress passed the Beaches Environmental Assessment and Coastal Health Act of 2000 (BEACH Act) to protect the public health at our nation's beaches. The BEACH Act requires that states, in cooperation with the EPA, develop and implement a program to monitor coastal recreation waters adjacent to beaches that are used by the

public, and to notify the public if water quality standards for pathogens and pathogen indicators are exceeded.

The BEACH Act requires the state to identify all factors used to evaluate and rank beaches; identify coastal recreation waters in the state; identify bathing beaches adjacent to coastal recreational waters; develop a sampling, monitoring, and notification program; develop a method for issuing beach advisories and/or closings; and develop a method to notify the public. In July 2001, the Governor's office appointed the GLO as the lead state agency to implement the BEACH Act based upon the current Beach Watch Program.

The Texas Beach Watch Program gives Texans baseline data on the health of gulf waters, making sure that beaches are safe for swimmers, surfers, sailors and boaters. The Beach Watch Program involves county and city governments, universities, and organizations representing beach goers. Contractors test specified sites for Enterococcus bacteria and issue public advisories if water samples exceed the criteria recommended by the EPA.

The Gulf of Mexico Community-Based Restoration Program The Gulf of Mexico Community-Based Restoration Program (GCRP) Partnership invites proposals for its citizen-driven habitat restoration projects. The partnership funds on-the-ground activities to restore marine, estuarine and riparian habitats. This grant program seeks to restore and protect the health and productivity of the Gulf of Mexico in ways consistent with the economic well being of the region. Projects must be within the designated priority area, the Lower Laguna Madre, Texas Coastal Bend and Bays, and Galveston Bay.

The GCRP is a multi-year, regional partnership between the Gulf Ecological Management Sites (GEMS) Program and the NOAA Community-Based Restoration Program. The purpose of this partnership was designed to strengthen the conservation efforts of the GEMS Program by supporting on-the-ground habitat restoration benefitting living marine resources and fostering local stewardship of ecologically significant areas across the Gulf of Mexico.

TCEQ/TSSWCB joint publication SFR-68/04 149 The Bilge Water Reclamation Program The GLO initiated the Bilge Water Reclamation Program as an innovative response to the large number of spills from commercial and recreational vessels along the Texas coast. Facilities operating under the program collect and process bilge water that is often contaminated by petroleum hydrocarbons from local commercial fishing vessels. The facilities provide vessels with an environmentally responsible way to dispose of bilge water. There is no charge to use the facility, and the used oil collected is recycled by a local company. The cooperative development of the Bilge Water Reclamation Program, by the GLO and its partners, has proven to have a positive impact on water quality along the Texas coast.

Coastal Texas 2020 Coastal Texas 2020 is a long-term, statewide initiative to unite local, state, and federal efforts to promote the environmental and economic health of the Texas coast. One goal of Coastal Texas 2020 is to increase the state's share of federal funding to fight rapid coastal erosion. Coastal Texas 2020 is designed to implement the vision of a comprehensive approach to coastal issues that mixes local, state, and federal funds with money from the private sector, while combining regulatory changes with market-based solutions.

The Adopt-A-Beach Program The Texas Adopt-A-Beach Program, sponsored by the GLO, is dedicated to preserving and protecting Texas beaches by raising public awareness; educating citizens about the source of debris; and generating public support for state, national, and international action to clean up coastal waters. Since the first Adopt-A-Beach Cleanup in 1986, more than 300,000 volunteers have come to the Texas coast to haul off tons of trash. At each cleanup site, volunteers record data about the trash to learn more about the cause of marine debris. This data has been instrumental in the passage of international treaties and laws aimed at reducing the amount of offshore dumping. The program's success is due to the generous efforts of dedicated volunteer county coordinators, coastal community leaders, sponsors, and citizens. Strong support from the private sector helps carry the anti-litter message to Texans all across the state.

Border Programs Urban populations are growing rapidly in the border region, exceeding growth throughout the rest of the state and much of the nation. The McAllen-Edinburg-Mission area is the fourth-fastest growing metropolitan statistical area in the U.S. On the Mexican side of the border, population is rising even more quickly, expanding by almost 50 percent in the past ten years. With this boom has come both an increased demand for

150 TCEQ/TSSWCB joint publication SFR-68/04 water supplies and a strain on communities' water, wastewater, and waste management infrastructure.

The region's economy depends on agriculture, ranching, oil and gas production, trade and commerce, industry, and tourism. Agriculture is particularly important in the Lower Rio Grande Valley, where the lack of an adequate supply of high quality water is threatening the livelihood of farmers. Per capita income is lower in the border region than other parts of Texas as a whole. Lower income results in fewer tax dollars for local governments to meet existing needs, to keep up with rapid growth, or to plan for the future. Communities are challenged to do more with less. One of the greatest threats to water quality is the lack of sufficient water and wastewater infrastructure to keep pace with border growth. A lack of adequate service increases the likelihood that raw sewage or poorly treated water can enter the river, elevating bacteria levels and the risk of contracting water-borne diseases like hepatitis A. Raw sewage, wastewater, and agricultural activity can also increase levels of nutrients in the river. Elevated nutrient concentrations encourage algal growth and decrease dissolved oxygen. Low dissolved oxygen endangers aquatic plants and animals.

In addition to the need for adequate infrastructure, water quantity problems also affect water quality in the Rio Grande. The less water available, the more concentrated pollutants can become in the river, and the less suitable the water becomes for municipal and agricultural use.

Groundwater throughout the border region is most threatened by increasingly high salt content. Overuse of a groundwater resource depletes water and increases movement of brackish water that requires more extensive treatment to meet drinking water standards. Other causes of high salinity include leaching of salts left in the soil by previous irrigation and seepage of oil-field brines into the ground. Pesticide residues can also travel into an aquifer with irrigation runoff or seepage into the soil.

Border growth also impedes communities' ability to manage the disposal of solid and hazardous wastes. Limited disposal options leads to an increase in illegal dumping. Improper disposal of used tires is a major concern in the region. Hazardous waste transportation is also a concern in border port-of entry cities , where chemical spills pose a potential threat to public health and water supplies. The following is a discussion of some of the programs in place to deal with the issue of water quality in the border region.

The TCEQ Border Pollution Prevention Initiative The Mexican government's in-bound maquiladora ("maquila") or twin plant program allows foreign companies to establish manufacturing and production facilities in Mexico and ship raw materials and components to those facilities under no or low tariffs. The Maquilas have affected Texas'

TCEQ/TSSWCB joint publication SFR-68/04 151 border environment in a number of ways. One of the most significant environmental impacts is the strain placed on the ability to manage additional wastewater, solid waste, and hazardous waste disposal needs. Since its inception in 1994, the TCEQ Border Pollution Prevention Initiative has worked with maquilas, local, state, and federal governments, and universities to reduce pollution along the border. The program has assisted Mexican federal and border-state governments, universities, and other institutions in developing pollution prevention and waste minimization capability. Pollution prevention capability has been furthered by facility site assistance visits, training events, partnerships with universities in Mexico, and border roundtables.

The Border Environment Infrastructure Fund The North American Development Bank established the Border Environment Infrastructure Fund (BEIF) in an effort to make projects affordable, especially for the smallest and poorest communities. The purpose of the BEIF is to make environmental infrastructure projects affordable for communities throughout the U. S.-Mexico border region by combining grant funds with loans or guaranties for projects that would otherwise be financially unfeasible. A primary objective of the BEIF assists communities in transition from highly subsidized projects to self-sustaining projects supported locally by user fees and other revenue. As a result, to access BEIF funds, project sponsors must demonstrate local "buy in" with the commitment of current revenues, capital reserves, and/or debt at the municipal or utility level.

The International Boundary and Water Commission The mission of the International Boundary and Water Commission (IBWC) is to apply the rights and obligations which the Governments of the United States and Mexico assume under the numerous boundary and water treaties and related agreements. The United States and Mexican sections of the IBWC, USIBWC and MxIBWC, have recently been taking a proactive approach in support of its obligations. For example, the USIBWC holds public meetings along the border to provide information to the local communities on issues such as water quality, ongoing projects, and illegal dumping, and solicits the input of the citizens in addressing these issues. Several of the main goals of the IBWC as they relate to nonpoint source pollution include finding solutions to border sanitation, and working to address other border water quality problems. In order to obtain these goals, the USIBWC has implemented the following objectives:

# promote successful resolution of a broad range of trans-boundary environmental issues # investigate and report on the most feasible measures for solving border sanitation problems

152 TCEQ/TSSWCB joint publication SFR-68/04 # conduct various planning and environmental studies for groundwater and border sanitation (water quality) programs

One of the key projects for dealing with border sanitation is the construction of an international wastewater treatment plant in the City of Nuevo Laredo. The Nuevo Laredo International Wastewater Treatment Plant (NLIWTP) provides a high level of treatment for millions of gallons of sewage each day originating from the City of Nuevo Laredo. The NLIWTP directly impacts the water quality of the Rio Grande and reduces the health risk to residents on both sides of the river. As the project continues, the USIBWC is working with the MxIBWC and Nuevo Laredo's Comision Municipal de Agua Potable y Alcantarillado (COMAPA) on long-term planning for further improvements to the water and wastewater infrastructure in Nuevo Laredo with funds provided by the EPA.

The USIBWC also conducts water quality monitoring in support of its mission to address border sanitation problems along the border. USIBWC field offices located throughout the border provide local support for this mission. In 1998, because of the international nature of the Rio Grande, the State of Texas contracted with the USIBWC to implement the Clean Rivers Program (CRP) for the Rio Grande in its 1,254-mile international boundary section. This agreement has led to a more coordinated effort between federal, state, and local agencies in addressing the water quality of the Rio Grande.

The Economically Distressed Areas Program The Economically Distressed Areas Program (EDAP), administered by the Texas Water Development Board, provides financial assistance in the form of a grant, a loan, or a combination grant/loan to bring water and wastewater services to economically distressed areas, where present water and wastewater facilities are inadequate to meet the needs of residents. To be eligible for the program, projects must be located in economically distressed areas within affected counties and/or be located next to an international border. The EDAP will fund construction, acquisition, or improvements to water supply and wastewater collection and treatment works, including all necessary engineering work. The program also includes measures to prevent future substandard development.

The Colonias Initiatives Program The Colonias Initiatives Program is administered by the Texas Secretary of State's Office. One of the greatest concerns regarding the colonias is the lack of wastewater infrastructure, potable water, and the potentially serious consequences for public health and its effect on quality of life. The Colonia Incentives Program was initiated to advance efforts to get colonia residents' homes connected to water and wastewater services in a more expeditious manner.

TCEQ/TSSWCB joint publication SFR-68/04 153 Border Recycles Day Border Recycles Day involves a variety of environmental events in communities and schools as part of the statewide Texas Recycles Day (and National America Recycles Day) on November 15th. The first Border Recycles Day was celebrated in November 1998. Events initially were staged in Texas border cities by the TCEQ, but local communities have since taken ownership and created their own initiatives. Now Border Recycles Day has been formally incorporated in the State-to-State Strategic Environmental Plans that the TCEQ has developed with counterpart agencies in the neighboring states of Chihuahua, New Mexico, Coahuila, Nuevo Leon, and Tamaulipas. As a result, some Texas border communities host sister-city events with their Mexican counterparts.

Friends of the Rio Grande One of the goals of the USIBWC Clean Rivers Program (CRP) is to promote environmental awareness through public education and outreach. TCEQ and the USIBWC CRP have teamed together to form an initiative called Friends of the Rio Grande. The goals of this initiative are to increase public outreach programs throughout the border region, implement a volunteer monitoring program in cooperation with Texas Watch, promote environmental clean ups in the basin, and to provide recognition of outstanding efforts in environmental activities to encourage greater participation in environmental awareness.

154 TCEQ/TSSWCB joint publication SFR-68/04 CHAPTER 7 EDUCATIONAL PROGRAMS The active participation and cooperation of all Texans is necessary to safeguard Texas' natural resources. Everyone who lives or works in a watershed can potentially contribute to nonpoint source problems. Public education and awareness is essential to involving citizens in learning about their environment and taking appropriate actions to prevent pollution. Implementation programs typically include an education component to enhance public understanding and encourage participation. In addition, a number of state, regional, and local agencies and organizations have developed stand alone programs to educate and inform the public on environmental issues which promote stewardship and protection of natural resources.

Education Through Assessment One of the most effective ways citizens can learn about water quality and the problems associated with nonpoint source pollution is by conducting assessment activities. Learning about watersheds and how water quality is assessed leads to an understanding of city planning, waste treatment, land use and its effects on water quality, and environmental practices that lessen the impacts of urban growth, development, and agricultural practices on water quality. Volunteer monitoring and assessment programs that make data readily available and easy to understand gives citizens a sense of ownership and responsibility for their watersheds. Below is a discussion of some of the volunteer monitoring and assessment programs in place throughout the state that address nonpoint source pollution.

Texas Watch Volunteer Environmental Monitoring & Education Program The Texas Watch Program serves as a valuable resource for educating the public about water quality issues and fostering citizen participation in monitoring and protecting water quality. The Texas Watch Program is administered through a cooperative partnership between Texas State University, the TCEQ, and the EPA. The Texas Watch Program supports NPS and other environmental education and volunteer monitoring activities throughout the state. Texas Watch provides assistance to participating partners by promoting and maintaining environmental education activities, such as:

# statewide/regional meetings and workshops # a centralized volunteer water quality database # a comprehensive Web site # quarterly newsletters # a toll free information line

TCEQ/TSSWCB joint publication SFR-68/04 155 # NPS and environmental education materials # certified monitoring training protocols and materials

The Texas Watch Program, through its varied outreach activities, encourages individuals to adopt activities and behaviors which contribute to the improvement of water quality and prevention of NPS pollution. The Texas Watch Program trains and certifies students, volunteers, and other partners to collect quality assured data that can contribute to environmental decision making. Volunteers monitor a wide variety of habitats from rivers, creeks, ponds, and lakes to bays, bayous, and estuaries. In addition, Texas Watch forms watershed-based partnership networks to help citizens identify and address local water quality issues and concerns. The Texas Watch Partners Program solicits public and private entities to help train, equip, manage, and offer general support to the growing number of volunteer monitors across the state. This program is establishing strong ties between citizens, industries, river authorities, councils of governments, water districts, cities, local, state, and federal agencies, students at all grade levels, and private foundations.

The Lower Colorado River Authority— Colorado River Watch Program The Lower Colorado River Authority (LCRA) is a participating Texas Watch partner. Protecting water quality in the lakes and rivers is a vital part of the LCRA's mission. In 1988, a handful of Austin citizens, teachers, and students began sampling water along a tributary of the Colorado River. Within two years, their program had expanded to about twenty sites along the Colorado. In 1992, the LCRA began to manage the Colorado River Watch Network program, and helped expand monitoring sites along the river from Brownwood to the Gulf of Mexico. The success of the program has earned grants from the National Science Foundation and the EPA. The Colorado River Watch Network has been honored by the EPA, the State of Texas, the City of Austin, and many other organizations.

LCRA ensures that Network monitors are well-trained. Certified monitors must complete a 10-hour training process provided by LCRA. Instructors show volunteers how to use the testing equipment and monitors their practice of new data collection skills in the river. Volunteers then visit their designated testing site along with the instructor to test for several water quality indicators.

Every year to coincide with Earth Day, the Colorado River Watch Network joins with other volunteer monitors to test rivers, creeks, and coastal waters along the Colorado River watershed. Hundreds of volunteers participate in 20 counties along the Upper and Lower Colorado River Basin. This one-day monitoring event provides LCRA with a snapshot of the water quality along the river. The Network continues to

156 TCEQ/TSSWCB joint publication SFR-68/04 support environmental stewardship of dedicated teachers, students, and other citizens who perform volunteer monitoring throughout the river basin.

The Aquatic Experience Public education and outreach has been an integral part of the Upper Colorado River Authority's (UCRA) efforts to educate the public about NPS and urban runoff abatement. The UCRA has developed an on-going program, "The Aquatic Experience" that offers assistance to area public schools by providing opportunities for teachers and students to be exposed to every aspect of the aquatic environment. All topics involve "hands on" activities to promote general water education and emphasize local water quality issues.

Curriculum and workshops have been developed focusing on volunteer water quality monitoring, water conservation, aquatic life, and brush control. Assistance is provided to individuals or groups of students wishing to plan and implement long range investigations, research, studies, or water pollution abatement projects. "Aquatic Experience" activities take place primarily at the UCRA offices and the adjacent North Concho River; alternative locations, such as classrooms, or school sponsored events are also utilized.

Future plans for the program include development of an on-site educational facility along the North Concho River for hands-on experiences that will allow for the collection and identification of aquatic organisms, identification of aquatic plants, and demonstration of an aquatic environment. The site will contain a native and invasive plant identification plot that will demonstrate both proper and improper conservation practices of area water resources. The site will also contain numerous BMPs located on existing stormwater outlets to the river.

The City of Denton Watershed Protection Program The City of Denton Watershed Protection Program was initiated as part of a plan to reduce the overall pollutants within the surface waters of Denton and to ensure compliance with the National Pollution Discharge Elimination System Storm Water Phase II rule. The Watershed Protection Program monitors water quality around the city and the results are made available to the public. The City of Denton received initial funding from the EPA Environmental Monitoring for Public Access and Community Tracking (EMPACT) grant to get the program started. Through the grant, physical and chemical water quality data is measured and the results are telemetered to the University of North Texas for additional analysis. Information on water quality, including realtime water quality data, is compiled and displayed in an easily understood format and made available to the public via the internet. The Watershed Protection Program has used EMPACT data and additional watershed monitoring data to establish a

TCEQ/TSSWCB joint publication SFR-68/04 157 preliminary baseline for the condition of the city's surface water resources. This preliminary baseline data will be used to evaluate future changes in water quality.

Education Through Implementation Everyday activities that go on in a watershed have a direct impact on the quality of water in the watershed. By learning how everyday activities affect water quality, Texans can change habits to protect water resources. The voluntary and preventive efforts of citizens, businesses, service organizations, and other groups are an essential part of the effort to address NPS pollution. The key to successful NPS management is making citizens aware of the existing voluntary and preventive efforts available to the public. The following is a discussion of the education programs in place to make citizens aware of the activities and practices that contribute to NPS pollution and their role in NPS management.

Nonpoint Source Consumer Education The TCEQ has developed a variety of educational outreach materials to increase general awareness of nonpoint source (NPS) water pollution and stimulate actions which can be undertaken by citizens to reduce NPS pollution. Outreach materials developed under this program target primarily urban nonpoint issues such as pet waste, yard care, household hazardous waste, and used motor oil. Campaign materials include radio and television public service announcements, pet waste posters, bilingual NPS bookmarks and door hangers, NPS fact sheets, and a Clean Water for Texas brochure. Many of the materials can be downloaded and adapted by organizations for local use.

Storm Drain Marking Many Texas communities are working to reduce nonpoint source pollution by labeling storm drain inlets with messages warning citizens not to dump polluting materials. TCEQ has developed a how-to guide for communities interested in starting a storm drain marking program to reduce nonpoint source pollution. The manual covers a range of methods for labeling storm drain inlets and offers examples of programs operating in selected Texas cities. The purpose of the manual is to give cities and community groups the tools to launch a successful citizen-education effort to reduce dumping and protect local water supplies. To order this manual (GI-212), send your request to educate@tceq.state.tx.us or call 512/239-0028.

Back Yard Composting and Xeriscaping Backyard mulching, composting, and xeriscaping not only reduce waste, but also benefit yards and the environment by producing healthier soil and reducing water and fertilizer demands. Other benefits include reduced erosion, run-off, and pollution. The TCEQ has developed a program to help citizens and communities (through a network of regional and local

158 TCEQ/TSSWCB joint publication SFR-68/04 coordinators) teach their residents practical waste reduction and pollution prevention through environmentally responsible yard care practices, including grass-cycling, composting, xeriscaping, and integrated pest management. TCEQ staff provides training programs, technical assistance, literature, audiovisual resources, and networking opportunities that promote voluntary diversion of yard trimmings, food scraps, clean wood material, unrecyclable paper, and other easily composted materials from landfills.

Teaching Environmental Sciences TCEQ's Teaching Environmental Sciences (TES) is a graduate credit course developed through local resources. Since 1994, TCEQ and its collaborators have presented classes at local colleges and universities throughout Texas. Each summer, the TCEQ sponsors this program for 200-400 teachers who will use information learned in the course to instruct K-12 students on the importance of air, water, and waste issues and their impact on communities. Each course is led by a professor of science or education and is tailored to the region in which it is offered. Typically, much of the forty hours of instruction is spent outside the classroom, as teachers take tours and perform field tasks, such as water sampling and analysis. Teachers visit local industries, environmentally sensitive sites, water and wastewater plants, air monitoring stations, landfills, and/or recycling centers. They also hear from representatives of regulatory agencies, businesses, and community organizations.

Several teacher workshops are held each summer for teachers interested in conservation and natural resource issues. The workshops are held in various parts of the state in cooperation with the TSSWCB. The Texas Environmental Education Advisory Committee of the Texas Education Agency approves the content of the TSSWCB sponsored workshops. As an approved Environmental Education Professional Development Provider, teachers are able to get credit hours toward their required continuing education units, while experiencing nature and the outdoors.

Environmental News You Can Use The TCEQ offers subscribers a free service called Environmental News You Can Use. This monthly newsletter highlights information on a particular theme to be used to educate customers, suppliers, employees, or students about why and how they can improve the environment. To subscribe, send your name, mailing address, and e-mail address to educate@tceq.state.tx.us or call 512/239-3150.

Publications and Videos The TCEQ has many publications available to provide assistance on everything from pollution prevention to regulatory guidance. Each year over 30,000 books, posters, and teacher guides are ordered for school

TCEQ/TSSWCB joint publication SFR-68/04 159 classrooms. Among the items most in demand are posters and coloring books. In addition to publications, almost a dozen videos are available on school recycling, waste reduction and management, and pollution prevention. The agency's publications and videos have caught the attention of educators and environmental agencies outside of Texas.

The Association of Texas Soil and Water Conservation Districts has established and updates a conservation related video library that is maintained by the TSSWCB staff on their behalf for the benefit of local districts and educators. Currently, there are over 180 conservation-related videos in the library available to districts and teachers at no charge. Videos can be ordered through local soil and water conservation districts or the TSSWCB.

Environmental Information Line The 1-800-CLEANUP information line is a partnership with the private sector, the EPA, and other states to provide citizens an environmental information system that can be customized for each community. The system provides a single source of community-specific environmental and recycling information. Texans can call the hotline or go to www.1800clenup.org and enter their five-digit ZIP code to find information on local recycling, household hazardous waste collections, and environmental events.

Small Spill Prevention Program The GLO's small spill prevention program works with marinas and other interested parties to educate the public on ways to properly dispose of oil and reduce small spills. Small amounts of petroleum products may not kill fish and other marine organisms, but they can affect the vision, sense of smell, growth, and reproductive ability of marine wildlife. While small petroleum spills may impact marine wildlife, multiple small spills have the potential to impact entire water bodies. The Small Spill Prevention Program is an effective way to educate the public about ways to reduce spills and protect our marine resources.

The Texas Cooperative Extension Agricultural Outreach Program The Texas Cooperative Extension (TCE) is a partnership between the USDA, Texas A&M University, and County Commissioners Courts. The basic mission of the TCE is education and dissemination of information relating to agriculture, home economics/consumer sciences, community development, and 4-H/youth. County Extension Agents deliver most of the educational programs of the TCE. These county agents, supported by specialists based at Texas A&M University in College Station and 12 regional centers throughout Texas, provide technical information, respond to individual problems and questions, conduct educational meetings, and

160 TCEQ/TSSWCB joint publication SFR-68/04 establish and evaluate demonstrations to show the benefits of using practices based on the latest scientific research. They also provide educational information through radio and television programs, newspapers, newsletters, and bulletins. Water quality and conservation is one of six major program issues being addressed by agents and specialists on an interdisciplinary basis.

The TCE has the organizational framework and outreach capabilities to help implement the informational and educational programs essential to any voluntary pollution abatement effort. The TSSWCB works with the TCE to develop educational programs concerning agricultural nonpoint source pollution.

The Texas A & M University On-Site Wastewater Treatment Training Center The On-Site Wastewater Treatment Training Center was established in 1997 to provide an educational mechanism for training inspectors, installers, site evaluators, home owners, elected officials, and others involved in the on-site wastewater treatment industry. The Texas Agricultural Extension Service, Texas On-Site Wastewater Association, Texas Engineering Extension Service, Texas Agricultural Experiment Station, Texas Commission on Environmental Quality, local installers and businesses, Texas On-Site Wastewater Treatment Research Council, and Hidalgo County Health Department played vital roles in the planning and construction of the South Texas International On-Site Wastewater Treatment Training Center. Texas currently has three training centers. The Training Centers demonstrate treatment units and land application systems for management of wastewater. The Cooperators believe that training centers meet the need for hands-on training concerning on-site wastewater treatment systems.

There are five types of wastewater processing techniques taught and demonstrated at the Training Center. These concepts include septic tanks, anaerobic treatment, sand filters, trickling filters and constructed wetlands. These techniques are described later in this document as examples of best management practices.

Don't Mess With Texas The Texas Department of Transportation (TxDOT) maintains more acres of right-of-way than any other state department of transportation in the U.S. After years of collecting an increasing amount of trash from state highways, the agency realized that a public service campaign was needed to educate Texans about litter prevention. Two of the main components in the campaign include the Adopt-a-Highway (AAH) program and the Don't Mess with Texas (DMWT) program.

TCEQ/TSSWCB joint publication SFR-68/04 161 The AAH program is implemented statewide to teach Texans about litter prevention by allowing citizens to pick up litter along Texas highways. The program encourages litter pick-up by establishing sections of the highway to be adopted by individuals or groups for clean-up. Upon adopting a section of the highway, a sign will be posted along the highway naming the individual or group who has adopted the section of the highway. The program concept has been adopted by 47 other states and several foreign countries.

In 1986, TxDOT secured a local, award-winning, advertising agency to develop a litter prevention campaign to encourage motorists to stop littering. Better known as "Don't Mess with Texas" (DMWT), this program was the first of its kind in the world. Research was completed to determine what groups were contributing the most litter. This group became the target of the litter prevention campaign. The target audience was men under the age of 35 who predominantly drove pickup trucks. Television and radio public service announcements featuring these targeted Texans were created. Research allows the program to reinvent itself periodically based upon changes in the target audience. The DMWT Partners program was established to allow entities to donate in-kind goods and services to the campaign.

Keep Texas Beautiful The vision of the Keep Texas Beautiful (KTB) organization was designed to make Texas the most beautiful state in the nation. KTB seeks to achieve this goal through partnerships involving government, business, civic groups and volunteers to address litter prevention, solid waste management, recycling, composting, beautification, and general community improvement. KTB programs empower Texans through education to take responsibility for enhancing their community's environment.

Any Texas community can become a Keep Texas Beautiful Affiliate. Affiliates receive a variety of services to improve their effectiveness in mobilizing grassroots volunteers to beautify their communities. KTB has established an annual certification and recognition program for communities with ongoing programs for litter prevention, beautification, community improvement, and the minimization of solid waste.

Keep Texas Beautiful sponsors and coordinates many of its education and cleanup programs in cooperation with state agencies including the TxDOT and the TCEQ. Keep Texas Beautiful (KTB) is currently under contract with the TCEQ to operate the River and Lakes Cleanup Program. Each year, KTB helps sponsor dozens of cleanups across the state in partnership with local governments, concerned citizens, community and nonprofit groups, schools, scout troops, businesses and companies. Volunteers pick up litter and debris along the shores and banks of Texas lakes and rivers.

162 TCEQ/TSSWCB joint publication SFR-68/04 In return, participants receive, free of charge: trash bags, posters, T-shirts, press releases, and volunteer incentives.

KTB has also taken a leadership role on the issue of illegal dumping and litter law reinforcement by offering seminars and conferences, and forming a statewide task force to share information, discuss the issue, and develop solutions.

The Texas Wildscapes Program The Texas Wildscapes Program emphasizes providing the basics for good habitat: food, water, and cover. With approximately 95% of Texas land use practices in the hands of private landowners, the importance of education toward a common bond is evident. The Wildscapes Program provides educational materials for the Texas urban residential landowner to promote a better-educated population which is more supportive of wildlife and conservation issues. The Texas Wildscapes Program can also be applied to community, rural, and corporate properties. The program introduces the concept of habitat, and provides information to the public regarding wildlife needs and the importance of landscaping with native plants. The program also promotes minimizing the use of pesticides and fertilizers, xeriscaping, mulching, composting, and watering practices to conserve water.

The Edwards Aquifer Authority The Edwards Aquifer Authority, a member of the Texas Alliance of Groundwater Districts, is a regulatory agency charged with preserving and protecting the Edwards Aquifer in an eight-county region including all of Uvalde, Medina and Bexar counties, plus portions of Atascosa, Caldwell, Guadalupe, Comal and Hays counties. The Authority was created by the Texas Legislature in 1993 with the passage of the Edwards Aquifer Authority Act to preserve and protect this unique groundwater resource. The Act created a 17-member board of directors which sets policy to manage, conserve, preserve, and protect the aquifer; works to increase the recharge; and prevent waste or pollution of the aquifer. The Act also established the South Central Texas Water Advisory Committee made up of representatives from downstream counties to interact with the Authority when issues related to downstream water rights are discussed.

The goals of the Edwards Aquifer Authority are designed to fully implement the requirements of the Edwards Aquifer Authority Act; develop an effective, comprehensive management plan based on sound, consensus-based scientific research and technical data; maintain continuous spring flow; protect and ensure the quality of ground to surface water in the Authority's jurisdiction; forge solutions that ensure public trust; promote healthy economies in all parts of the region; research and develop additional sources of water; and provide strong, professional management for the Authority.

TCEQ/TSSWCB joint publication SFR-68/04 163 The Barton Springs/Edwards Aquifer Conservation District The Barton Springs/Edwards Aquifer Conservation District (BSEACD) is an underground water conservation district created for the purpose of conserving, protecting and recharging the underground water bearing formations within the District, and for the prevention of waste and pollution of such underground water, particularly the waters in the formations known as the Edwards Limestone and Associated Formations in Northern Hays and Southern Travis Counties. The BSEACD, a member of the Texas Alliance of Groundwater Districts, initiates and administers clean up events within its district.

The BSEACD Staff contact local schools, scouting troops, neighborhood groups, and place ads in local papers to request volunteers for the event. Creek clean ups are typically held on a Saturday morning in the fall or spring when temperatures are comfortable. Volunteers meet to share safety information, distribute bags and gloves, and pair off in groups of two or three people to pick-up trash. Large items such as old tires, lumber, metal signs, fencing, and appliances are collected by adult volunteers and BSEACD staff for special pick-up and disposal.

Since many caves and sinkholes are located in rural areas which do not have trash collection, they become the target of illegal dumping. Cave cleanups are less frequent and require a special team of volunteers depending on the type of cave. Removal of debris from caves is labor and time intensive. Hoisting systems are used to remove debris from the cave. Final phases of cave cleanup include removal of sediment laden with broken glass and leached chemicals from debris.

In addition to cleanup events, the BSEACD administers the Aquifer Watch Program. The Aquifer Watch Program links junior high/middle school students with a well near their school which is appropriate for water quality sampling. Students visit their "adopted well" four times during the school year. Prior to the well visit, a staff member visits the class to provide hands-on demonstrations and training the various pieces of equipment. During the well visit, District staff accompanies the group and assists with measurements of the aquifer level, water sampling, and on-site chemical analysis using titrators and spectrophotometers. Students test their groundwater samples for temperature, pH, conductivity, alkalinity, chlorides and nitrates. In addition to time spent in the field collecting water samples and measuring water levels, District staff works with the teachers and students to help them learn more about their "adopted" well.

The City of Austin's "Grow Green" and "Earth Camp" Recognizing that one of the most effective ways to protect water quality is through pollution prevention, the City of Austin sponsors a variety of educational programs designed to encourage environmentally responsible

164 TCEQ/TSSWCB joint publication SFR-68/04 behavior. One of the most comprehensive programs is "Grow Green" which is a partnership between the City of Austin, the Texas Cooperative Extension (TCE), and local nurseries. This program is a model for how local government can work with the horticulture industry to protect water quality.

The concepts developed under this program are a result of sound science and research. The program stresses planting native and adapted plants which require little water and few pesticides to survive in Texas. One strategy, stressed by the City of Austin, includes reducing the use of turf grass. Turf grass can be a high maintenance yard material, often requiring fertilizing, disease control, and supplemental watering. Consideration of options such as increased native and adapted plant beds or mulched or native areas to reduce the need for additional chemicals, watering, and mowing is emphasized.

The program recommends such practices as having soil tested to ensure that only nutrients missing are added, leaving grass clippings on the lawn instead of bagging them to reduce the need for fertilizer, using organic fertilizers, and minimizing the use of pesticides and other chemical treatments. The "Grow Green Plant Guide" was created to help residents select beautiful native plants which are drought tolerant and resistant to pests and diseases. In doing so, it is easier to adhere to the principles outlined in the Grow Green Program.

Now in its ninth year, Earth Camp is the City of Austin's four-day, outdoor, watershed education program for fifth-grade elementary school students. The primary focus for Earth Camp Austin is educating students about the many things necessary to the preservation of water quality in Austin watersheds. The lessons entail study of the geography and natural history of Austin's watersheds, water quality, wildlife in our watersheds, hydrology and geology of the Barton Springs/Edwards Aquifer, green gardening, and other related topics. The approach is based on field trips with hands-on scientific investigations. Participating students are expected to do some homework that includes family involvement and group work.

The camp runs during the school year, from September through June. Participating teachers attend training, teach the Earth Camp curriculum before the students attend camp, and manage and assist the students during camp. The City of Austin provides the environmental expertise, teacher training, field trips, tours, lessons, and equipment.

The City of Houston's WET in the City Program Water Education for Teachers (WET), is a nationally recognized training for urban educators that includes an interdisciplinary activity and curriculum guide for kindergarten through 12th grades. The program helps students learn about their local environment and how to conserve precious natural resources.

TCEQ/TSSWCB joint publication SFR-68/04 165 Students, educators, and administrators in Team WET Schools make a commitment to increase environmental education and stewardship in their community. Each school's Team WET Coordinator receives technical assistance from the City of Houston Water Conservation staff and a Team WET Kit that includes a water test kit, guides for planning water festivals, instructions for conducting water quality audits, and other materials for successful student and community projects. First through 8th grade students create their own water conservation messages to help educate their peers and increase public awareness of conservation issues with the "Design-a-T-Shirt Contest”.

Every year, the Mayor of Houston declares the month of May "Water Conservation Awareness Month". The two-day event features conservation skits, a conservation scavenger hunt, and booths sponsored by environmental organizations, city, and county departments. Public Works Engineering also conducts an annual program called "Water Wise and Energy Efficient." This two-week education/retrofit program focuses on water and energy conservation.

In addition to the education and outreach activities, Public Works Engineering also targets water use customers by distributing more than 20,000 "water saver" kits to citizens to help them reduce their water consumption and water bills. The kits contain a displacement bag (½ gallon) for the toilet tank, dye tablets to test for leaks, a "tankee clipper", a flow restrictor, and an instruction sheet.

The City of Houston actively participates in other special events such as National Drinking Water Week, Earth Day events, Bay Day, Home & Garden Shows, school health fairs, and other environmentally focused festivals and community events in order to implement a comprehensive water conservation program for residents of all ages.

The City of Fort Worth Environmental Education Programs The City of Fort Worth's Environmental Management Department has established a Public Education division that offers adult information presentations, student programs, publications, and special events about environmental concerns in Fort Worth. Program components include composting, environmentally friendly lawn care practices, storm water and wastewater instruction curriculum, and waste reduction through recycling demonstrations.

The Department of Environmental Management has also launched a pilot Environmental Mapping Education web site for the Fort Worth ISD. The web site incorporates environmental science with the digital mapping of Geographic Information Systems. Students can log onto the site and work through online mapping, water quality, air quality, and spill response lessons. Students interactively map local area rivers, streets, parks, and

166 TCEQ/TSSWCB joint publication SFR-68/04 watersheds. Each lesson poses a problem, and explains a step-by-step mapping process to find a solution.

The City of San Antonio's Curbside Recycling Program The City of San Antonio's recycling program is the largest curbside recycling program in the State of Texas. In 1995, the program was initiated in a quadrant of the city and full implementation citywide was completed in three years. The program created "Binny" the Recycling Bin as their mascot and an advertising mechanism for the public. The program's ultimate success is a result of public and private cooperation.

The program provides service once a week, and recyclables are collected using an 18-gallon green recycling bin which the City has distributed to all residents at no cost. The recyclables are collected curbside for ease of collection. The City accepts newspaper, glass jars and bottles, aluminum cans, plastic household jars and bottles, aerosol cans, and steel and tin household containers.

TCEQ/TSSWCB joint publication SFR-68/04 167 CHAPTER 8 BEST MANAGEMENT PRACTICES Nonpoint source management programs in Texas make use of a wide variety of Best Management Practices (BMPs). This section provides an overview of the primary BMPs in use or identified for use in Texas. This is not a complete listing of all acceptable BMPs for nonpoint source pollution control programs and projects in Texas. Whether or not projects receive funding under CWA §319(h), the use and demonstration of innovative practices not listed here are acceptable and valuable, particularly where their effectiveness can be evaluated and monitored.

Definition of Best Management Practices Best Management Practices (BMPs) are those practices determined to be the most efficient, practical, and cost-effective measures identified to guide a particular activity or to address a particular problem. Nonpoint Source BMPs are specific practices or activities used to reduce or control impacts to water bodies from nonpoint sources, most commonly by reducing the loading of pollutants from such sources into storm water and waterways. Programs that implement these BMPs are addressed in Chapter 5.

There are many NPS BMPs in use in Texas. "Best" is relative to the particular needs or purposes and the specific site characteristics to be addressed.

Since most BMPs address specific management needs and site characteristics, it is helpful to identify and classify BMPs according to where they are most effective. The next section categorizes BMPs according to their use in managing the various parts of the NPS pollution pathway. The final section addresses which BMPs best address different activities and disturbances which are sources of NPS pollution.

A separate document, the BMP Finder (www.tceq.state.tx.us/compliance/monitoring/stakeholders/nps-stakeholders.html) provides a more comprehensive description and discussion of important Texas NPS BMPs and guidance on their use. The BMP Finder is extensively cross-referenced to help in identifying and comparing BMPs which are closely related and to sort out the many different names and variations in BMPs which are currently in use.

Categories of Nonpoint Source Pollution Management The management of nonpoint source pollution involves a strategic combination of practices designed to prevent and intercept the entry of nonpoint source pollutants into Texas waters along the entire storm water

168 TCEQ/TSSWCB joint publication SFR-68/04 pathway. Most BMPs address one specific stage of this pathway, although they may be applied in different situations and to different sources. # Preventive practices: preventing or reducing the contact of pollutants with storm water # Cleanup practices: recapturing pollutants that have spilled onto or contaminated a location # Erosion control practices: protecting material at the soil surface from entering storm water runoff # Sediment control practices: preventing materials already suspended in storm water from leaving a site # Runoff control practices: reducing the volume, velocity, and/or erosive force of storm water runoff flow # Channel protection practices: preventing erosion of channels, stream banks, and streambeds # Habitat restoration practices: restoring natural communities that minimize erosion and remove water pollutants, especially along a waterway and its riparian zone # In-stream remediation practices: removing nonpoint source pollutants or restoring water quality characteristics in a waterway # Other BMPs, such as public education, for example, may address two or more of these stages in the storm water pathway simultaneously.

For optimum effectiveness, NPS programs should attempt to coordinate all BMPs in a watershed. BMPs can either complement each other – erosion control on a site typically increases the effectiveness and reduces the size and maintenance requirements of the site's sediment controls – or undermine each other – armoring a straight stretch of channel or stream banks may increase flow velocity and channel erosion downstream. In general, controlling NPS pollutants through prevention where possible is most cost effective. Control of these pollutants generally becomes more difficult and expensive the farther they travel down the storm water pathway.

The first table below presents selected Texas BMPs in each of these categories along the storm water pathway.

TCEQ/TSSWCB joint publication SFR-68/04 169 Table 8.1 Best Management Practices by Category

Management Category and Description Typical BMP Examples Preventive BMPs Preventive BMPs, sometimes called source controls, are Planning, policy, and regulatory activities management techniques or designs that prevent or reduce Using alternate, less polluting materials the exposure of substances to precipitation, storm water, or surface waters. All policies and practices that prevent Housekeeping to contain and cover the release of materials to the open air, soil, or water are materials and wastes, or keep them indoors preventive BMPs. Such practices and safeguards comprise Minimize the extent and duration of land a large part of the rules, guidelines, and permit disturbance activities requirements for facility management and for the storage, transport, processing, and disposal of wastes and Well plugging hazardous materials administered by TCEQ and other Recycling and composting, including regulatory agencies. rainwater harvesting Household Hazardous Waste and similar collections

Cleanup BMPs Cleanup BMPs remove or remediate nonpoint source Spill response pollutants which have contaminated a specific area. In Contaminated site cleanup most cases of significant contamination, the selection and implementation of these BMPs is governed specifically Trash-litter cleanup under agency rules. Other cleanup BMPs, such as cleanup Increased-efficiency street sweeping of litter or illegally disposed materials, are more discretionary.

Erosion Control BMPs Erosion control BMPs maintain the integrity of the land Mulches and blankets surface to prevent material at the surface from entering Vegetation preservation and establishment storm water or surface water. Riprap on temporary traffic areas

Sediment Control BMPs For material that escapes erosion control BMPs and enters Inlet protection storm water runoff, the next line of defense is sediment Extended detention basins control. Sediment control BMPs detain runoff before it leaves a site to filter out and/or precipitate suspended Vegetated filter strips particles, including soluble pollutants which may be Sediment trap/stone outlet attached to solid particles. Filter berms and silt fences Sand filter systems Constructed or restored wetlands

Run-on and Runoff Control BMPs Runoff control BMPs reduce the volume, velocity, and Level spreaders erosive force of storm water through diversion, infiltration Interceptor swales or absorption of storm water into the surface or through physical impediments which slow the flow of storm Diversion dikes to exclude storm water water. from off-site

170 TCEQ/TSSWCB joint publication SFR-68/04 Channel, Stream Bank, and Streambed Protection BMPs Prevention of disturbance by exclusion of livestock, off-road vehicles, etc. These BMPs protect the integrity of stream beds and Channel shaping to reduce velocity and stream banks to prevent erosion and loss. Stream banks erosive force can be protected or restored either by increasing Gabions or riprap lining of channels resistance of the bank to erosion or by decreasing the Reinforcing or armoring exposed surfaces energy of the water at the point of contact with the bank, Stream bank vegetation for example by deflecting or interrupting flows

Habitat Restoration BMPs These are a special subset of biological erosion control Reestablish hydrology of wetlands and and stream protection BMPs. They establish or protect the riparian areas natural communities which most effectively protect Restoration of wetland native plant waterways and riparian areas from erosion.. communities

In-Stream and Lake Remediation BMPs Once nonpoint source pollutants have affected a water Mechanical aeration to restore dissolved body, another set of BMPs may reduce or reverse these oxygen effects. Chemical treatments – e.g. pH adjustment

Other BMPs Public education

Categories of Nonpoint Sources and Associated Pollutants Best Management Practices can be classified not only by management category but also by the primary nonpoint sources of pollution and the types of pollutant loadings and other impacts that each of these sources tends to cause. Many BMPs are used to address a broad range of NPS sources, particularly the erosion and sediment control BMPs.

Major Sources # Agriculture # Silviculture (Forestry) # Urban storm water # Construction (including road construction)

Special Sources # Atmospheric deposition # Boats and marinas # Septic and other on-site wastewater systems # Mining and petroleum production # Industrial sites # Roads # Spill containment and contaminant remediation

TCEQ/TSSWCB joint publication SFR-68/04 171 # Hydromodification and stream bank protection # Habitat degradation # Wildlife # In-stream remediation # Underground storage tanks

Table 8.2 Best Management Practices by Source

Sources and Activities Pollutants and BMP Examples Other Impacts Agriculture Sediment from exposed soil; Animal Mortality Facility, Tilling, cultivation, harvesting, and nutrients from fertilizers; Alley Cropping, Brush other soil surface exposure and chemicals from pesticides, Management, Closure of disturbances; chemical applications streamflow and temperature Waste, Impoundments, increases caused by Composting Facility, vegetation removal Conservation Crop Rotation, Constructed Wetland, Contour Buffer Strips, Cover Crop, Cross Wind Stripcropping, Diversion Dam, Dike, Filter Strip, Firebreak, Grade Stabilization Structure, Grassed Waterway, Irrigation Land Leveling, Manure Transfer, Nutrient Management, Pest Management, Pond Sealing or Lining - Bentonite Treatment, Prescribed Grazing, Residue Management - No Till/strip till, Riparian Forest Buffer, Sediment Basin, Surface Roughening, Terrace, Use Exclusion, Waste Utilization, Water and Sediment Control Basin, Well Decommissioning

Silviculture/Forestry Sediment; nutrients from Broad-Based Dips; Road construction and use, timber forest fertilizer application; Cross-Road Drainage harvesting, mechanical equipment chemicals from pesticide Culverts; Haul Roads; Log operation, prescribed burning, site application; temperature Sets, Field Chipping Sets and preparation, fertilizer and pesticide changes resulting from Portable Mill Locations; application riparian vegetation removal Revegetation of Disturbed and sediment additions; and Areas; Rolling Dips; Skid streamflow increases caused Trails; Stream Crossings; by vegetation removal. Streamside Management Zones (SMZ); Salvage & Sanitation in SMZs; Water Bars; Wing Ditch

172 TCEQ/TSSWCB joint publication SFR-68/04 Sources and Activities Pollutants and BMP Examples Other Impacts Urban and Industrial Sediment from disturbed Clean-Up; Composting; Industrial, commercial, and land; nutrients and pesticides Animal Waste Collection; residential activities; lawn and from lawn and landscape Curb Elimination; Debris landscape management; pets and management; pathogens and Removal; Exposure wildlife; pavement and other nutrients from pet and Reduction; Landscaping And impervious covering of the soil; wildlife waste; oil and Lawn Maintenance Controls; vehicular traffic; production and grease; petroleum Minimization Of Pollutants, use of synthetic chemicals; hydrocarbons Parking Lot/Street Cleaning improper disposal of wastes Operations, Road Salt Controls, Streambank Stabilization, Land Use Management Practices, Buffers, Easements, Solid Waste Collection Facilities, Extended Detention Basin, Infiltration Device, Oil and Grease Trap Device, Porous Pavement, Sand Filter, Rain Garden, Vegetative Practices, Filter Strip, Grassed Swale, Wetland, Wet Retention Pond

TCEQ/TSSWCB joint publication SFR-68/04 173 Sources and Activities Pollutants and BMP Examples Other Impacts Construction Sediment from bare soil and MINIMIZE EXTENT Removal of the soil’s protective stockpiles; nutrients from &DURATION OF cover; unpaved traffic surfaces; temporary and permanent DISTURBANCE earthmoving; open stockpiling of vegetation establishment; SURFACE erodible materials; streamflow increases caused STABILIZATION by vegetation removal and Mulching, Preserving impervious ground Natural Vegetation, coverings; waste chemicals Recontouring, Permanent and debris from painting and Seeding, Riprap, Sodding, other construction wastes; Surface Roughening, Temporary Gravel Construction Access, Temporary Seeding, Topsoiling, Erosion Control Compost, Erosion Control Blanket Runoff Diversion RUNOFF CONVEYANCE MEASURES Grass-Lined Channel or Swale, Hardened Channel, Interceptor Swale, Temporary Slope Drain, Paved Flume, Runoff Diversion Dike OUTLET PROTECTION Level Spreader, Outlet Stabilization Structure SEDIMENT TRAPS AND BARRIERS Block and Gravel Drop Inlet Protection, Excavated Drop Inlet Protection, Fabric Storm Drain Inlet Protection, Sediment Basin, Rock Dam, Sediment Fence/Straw Bale Barrier, Sediment Trap, Sand Filter System, Sod Drop Inlet Protection, Vegetated Filter Strip, Filter Berm (rock, sandbag, compost, mulch), Filter Sock (compost or mulch), Brush Barrier, Wetlands, Wet Basin, Extended Detention Basin STREAM PROTECTION Streambank Stabilization, Streambed Stabilization, Temporary Stream Crossing

174 TCEQ/TSSWCB joint publication SFR-68/04 Sources and Activities Pollutants and BMP Examples Other Impacts Atmospheric deposition Windblown pollutants of Pollution prevention and Metals from volcanic activity, greatest concern include emissions control measures forest fires, windblown dust, metals, such as mercury, and to reduce the exposure and vegetation, sea spray, the smelting nitrogen. release of pollutants to the of ores, and stack and fugitive dust air; also, erosion and (dust that escapes emission sediment control BMPs controls). reduce the entry of soil- Nitrogen from microbial bound pollutants, including decomposition, combustion of those from atmospheric fossil fuels, fertilizer and deposition, into storm water. explosives factories, and volatilization of applied ammonia- based fertilizers

Boats and marinas BOD (biological oxygen No-Wake Zones, Protected Discharge of sewage, fish demand) and SOD (sediment Shallow Water Habitats, cleanings, and food waste from oxygen demand); nutrients; Proper Storage and Handling recreational boats; pathogens; metals; arsenic of Materials, No-Discharge bilge from boat ballast; paints, from paint pigment, Zones, Pumpout Facilities pesticide, and wood preservatives; pesticide, and wood (Fixed-Point, Portable, and chemicals used to deter metal preservatives; zinc from Dedicated Slipside Systems), corrosion; biocidal antifouling anodes used to deter metal Boat Repair and agents; boat and marina corrosion; copper and tin; Maintenance Restrictions, construction; boat hull bottom copper and other metals. Solid Waste Collection painting and scrapings; boat Both copper and tin (as Facilities, Fish Cleaning operation and dredging activities; butyltin) have been found at Facilities/Controls refueling activities and bilge or toxic concentrations in fuel discharges marina waters nationwide, deriving from boat hull bottom paints and scrapings; turbidity; petroleum hydrocarbons; oil and grease

Septic and other on-site Nitrogen, phosphorus, Chemical Additive wastewater systems organic matter, toxic Restrictions, Elimination of Discharges, seepage, or other chemicals, and bacterial and Garbage Disposals, releases from failing or improperly viral pathogens Inspection and Maintenance, installed on-site wastewater Phosphorus Detergent treatment systems Restrictions, Denitrification Systems, Floating Aquatic Plant (Aquaculture) Systems, Upgrade or Replacement of Failing Systems, Alternating Bed System, Mound (Fill) System, Pressure Distribution (Low Pressure Pipe) System, Point-of-Sale Inspections, Inspection and Permitting of Installed Systems, Local Ordinances

Mining and petroleum Salt, sediment, petroleum Well and Testhole production hydrocarbons Inspection; Plugging Wells and Testholes

TCEQ/TSSWCB joint publication SFR-68/04 175 Sources and Activities Pollutants and BMP Examples Other Impacts Spill containment and Petroleum hydrocarbons and HHW and Empty Pesticide contaminant remediation other toxic chemicals Container Collection, Storm Spills, leaks, or other releases of Drain Stenciling, Spill chemicals and other pollutants Cleanup, Slurry Walls, Grouting, Geomembranes, Hydrodynamic Control, Surface Seals, Surface Drainage, Excavation, Soil Venting, In-Situ Treatment of Contaminants

Stream bed and stream bank Sediment, organic matter, No-Wake Zones, Livestock protection nutrients Exclusion, Stream Bank Increased stream flow and erosive Setbacks, Blankets and force can damage and erode stream Mattresses, Branch Packs, channels Composite Revetment, Gabions, Live Fascines (Wattling Bundles), Live Staking, Tree Revetment, Vegetative Cover, Live Cribwall, Check Dam, Deflectors, Grade Stabilization Structure, Low- Head Dam (Weir)

Underground storage tanks Petroleum hydrocarbons and Slurry Walls, Grouting, Spills, leaks, and other releases related chemicals Geomembranes, Surface Seals, Surface Drainage, Hydrodynamic Control, Pumping, Interceptor Systems, Soil Venting, Excavation, Biological Degradation, Chemical Degradation, Inspection

176 TCEQ/TSSWCB joint publication SFR-68/04 APPENDIX A CERTIFICATION OF AUTHORITY Kathleen White, Chairman R. B. "Ralph" Marquez, Commissioner Larry Soward, Commissioner Glenn Shankle, Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

GENERAL COUNSEL'S CERTIFICATION

The State of Texas, through the Texas Commission on Environmental Quality (commission or TCEQ), is currently in the process of seeking full approval for its Texas Nonpoint Source Pollution Assessment Report and Management Program ("NPS Program"). The Environmental Protection Agency (EPA) has given full technical approval to the NPS program.

In accordance with Section 319(b)(2)(D) of the Clean Water Act, each management program proposed for implementation must include:

A certification of the attorney general of the State or States (or the chief attorney of any State water pollution control agency which has independent legal counsel) that the laws of the State or States, as the case may be, provide adequate authority to implement such management program or, if there is not such adequate authority, a list of such additional authorities as will be necessary to implement such management program .

Following a review of the referenced 2005 NPS Program, the General Counsel certifies, under Section 319(b)(2)(D) of the Clean Water Act, that the laws of the State of Texas provide adequate authority to implement the NPS Program, as more specifically described below.

Relevant Legal Authority

The TCEQ is the state agency given primary responsibility for implementing the constitution and laws of the state relating to the conservation of natural resources and protection of the environment.1 Specifically, the commission has general jurisdiction over the state's water quality program, including:

! the issuance of permits; ! the enforcement of water quality rules, standards, orders and permits; and ! water quality planning.2

1 Texas Water Code (TWC) §5.012.

2 TWC §5.013.

TCEQ/TSSWCB joint publication SFR-68/04 177 The commission also has the power to perform any acts whether specifically authorized by the Texas Water Code (TWC) or other law or implied by the TWC, necessary and convenient to the exercise to the exercise of its jurisdiction and powers.3 The commission is also authorized to adopt rules necessary to carry out its duties and powers.4

Chapter 26 of the TWC provides that the commission shall establish the level of quality to be maintained in, and shall control the quality of, the water in the state.5 Waste discharges or impending waste discharges covered by the provisions of Chapter 26 are subject to reasonable rules or orders adopted or issued by the commission in the public interest. The commission has also been given the powers and duties specifically prescribed by Chapter 26 and all other powers necessary or convenient to carry out those statutory responsibilities.

Section 26.012 requires the executive director to prepare and develop a general, comprehensive plan for the control of water quality in the state, which shall be used as a flexible guide by the commission. Additionally, § 26.017 requires the commission to:

! encourage voluntary cooperation by the people, cities, industries, associations, agricultural interests, and representatives of other interests in preserving the greatest possible utility of water in the State;

! encourage the formation and organization of cooperative groups, associations, cities, industries, and other water users for the purpose of providing a medium to discuss and formulate plans for attainment of water quality control;

! establish policies and procedures for securing close cooperation among state agencies that have water quality control functions; and

! cooperate with the governments of the United States and other states and with official or unofficial agencies and organizations with respect to water quality control matters.

Section 26.023 of the TWC provides that the commission is the sole and exclusive authority for setting water quality standards, and must set water quality standards for the water in the state by rule, and may amend the standards from time to time. The standards must be based on all quality assured data obtained by the commission, including local watershed and river basin database. The commission may also issue permits and amendments to permits for the discharge of waste or pollutants into or adjacent to water in the state and may refuse to issue a permit when issuance would violate the provisions of any state or federal law or rule or

3 TWC §5.102. 4 TWC §5.103.

5 TWC §26.011.

178 TCEQ/TSSWCB joint publication SFR-68/04 regulations.6 The commission must also consider the compliance history of an applicant and its operator in considering issuance, amendment or renewal of a permit to discharge effluent.7

The commission may prescribe reasonable requirements for a person making discharges of any waste or of any pollutant to monitor and report on his activities concerning collection, treatment, and disposal of the waste or pollutant.8 The executive director has the responsibility for establishing a water quality sampling and monitoring program for the state. All other state agencies engaged in water quality or water pollution control activities are statutorily required to coordinate those activities with the commission.9 Additionally, the commission and employees or agents of the commission are authorized to enter any public or private property at any reasonable time for the purpose of inspecting and investigating conditions relating to the quality of water in the state.10

Local governments may also inspect the public water in its area and may execute cooperative agreements with the commission to provide for the performance of water quality management, inspection, and enforcement functions and for the transfer of money or property from any party to the agreement to another party for the purpose of water quality management, inspection, enforcement, technical aid and education, and the construction, ownership, purchase, maintenance, and operation of disposal systems.11 Municipalities may also establish a water pollution control and abatement program for the city to include services and functions which, in the judgement of the city or as may be reasonably required by the commission, will provide effective water pollution control and abatement for the city.12 Municipal water pollution control and abatement programs must be submitted to the commission for review and approval.13 Further, the commission shall hold annual hearings in counties that include particularly sensitive areas, such as the Edwards Aquifer, to receive evidence on actions the commission should take to protect the aquifer from pollution.14 To further this goal, the commission has adopted rules in 30 Texas Administrative Code (TAC) Chapter 213 which regulate development activities over the Edwards Aquifer.

6 TWC § 26.027. 7 TWC § 26.0281. 8 TWC § 26.042.

9 TWC §26.127.

10 TWC §26.014.

11 TWC § 26.171 and § 26.175.

12 TWC § 26.177.

13 Id.

14 TWC § 26.046.

TCEQ/TSSWCB joint publication SFR-68/04 179 The commission also has broad authority over the location, design, construction, installation, and proper functioning of on-site sewage disposal systems15 and has adopted corresponding rules in 30 TAC Chapter 285 to encourage the use of economically feasible alternative techniques and technologies.

Chapter 7 of the TWC establishes the enforcement authority of the commission. The commission may initiate an action to enforce provisions of the TWC, THSC within the jurisdiction of the commission and rules, orders, permits, or other decisions of the commission.16 The commission must report at least once a month at a meeting of the commission on enforcement actions taken by the commission or others and the resolution of those actions.17 The commission may assess an administrative penalty against a person for violations with a maximum amount of $10,000 a day for each violation.18 Persons charged with a penalty have the option of paying it in full, paying the penalty, paying an installment, paying or not paying in full and filing a petition for judicial review.19 If a person fails to comply with that section, then the commission or executive director may refer the matter to the attorney general for enforcement.20

Texas Department of Transportation The Texas Department of Transportation (TxDOT) is the primary agency in the State responsible for highway, road, and bridge construction. As described in the 2005 NPS Program, TxDOT’s approach in addressing nonpoint source pollution is to limit impacts to receiving waters through implementation of highway design specifications. TxDOT has been conferred broad authority by the legislature.21 TxDOT and TCEQ have entered into Memoranda of Understanding which has been adopted by reference in 30 TAC § 7.119 with regard to the assessment of water quality impacts resulting from certain transportation projects.

Texas Railroad Commission The Texas Railroad Commission (TRRC) is solely responsible for the control and disposition of waste and the abatement and prevention of surface and subsurface water pollution resulting from activities associated with the exploration, development, and production of oil and gas or geothermal resources, including:

15 Texas Health and Safety Code (THSC) § 366.011. 16 TWC §7.002.

17 TWC § 7.003.

18 TWC §7.051 and §7.052.

19 TWC § 7.061.

20 TWC § 7.066.

21 Texas Transportation Code, Chapter 201.

180 TCEQ/TSSWCB joint publication SFR-68/04 ! activities associated with the drilling of injection water source wells which penetrate the base of useable quality water;

! activities associated with the drilling of cathodic protection holes associated with the cathodic protection of wells and pipelines subject to the jurisdiction of the Railroad Commission of Texas;

! activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants;

! activities associated with any underground natural gas storage facility,

! activities associated with any underground hydrocarbon storage facility; and

! activities associated with the storage, handling, reclamation, gathering, transportation, or distribution of oil or gas before refining.22

To prevent pollution of streams and public bodies of surface water of the State, the Railroad Commission is must adopt and enforce rules in accordance with Texas Natural Resource Code § 91.101 relating to the drilling of exploratory wells and oil and gas wells. Additionally, TCEQ and TRRC have entered a Memorandum of Understanding adopted by reference in 30 TAC § 7.117 concerning cooperation and the division of jurisdiction between the agencies regarding wastes that result from, or are related to, activities associated with the exploration, development, and production of oil, gas, or geothermal resources, and the refining of oil.

Texas Parks and Wildlife Department The Texas Parks and Wildlife Department is authorized to regulate the use of department lands for oil, gas, and other mineral recovery and associated activities as the department considers reasonable and necessary to protect the surface estate. The Texas Parks and Wildlife is authorized by TWC § 26.129 to enforce the provisions of the Texas Water Code to the extent that any violation affects aquatic life and wildlife.

Wetlands The United States Army Corps of Engineers (Corps) is the principle authority for all dredging operations affecting bays and estuaries of Texas. While EPA has designated the Corps as the implementing agency under Section 404 of the CWA, the TCEQ is responsible for completing Section 401 Water Quality Certifications. The commission has enacted regulations in 30 TAC Chapter 279 establishing procedures and criteria for applying for, processing, and reviewing state certifications under CWA, §401, for activities under the jurisdiction of the agency for the purpose maintaining the chemical, physical, and biological integrity of the state's waters consistent with the Texas Water Code and the federal CWA. It is the policy of the commission to achieve no overall net loss of the existing wetlands resource base with respect wetlands functions and values in the State of Texas. Spill Response

22 TWC § 26.131.

TCEQ/TSSWCB joint publication SFR-68/04 181 The Texas Oil and Hazardous Substances Spill Prevention and Control Act provides that it is the policy of the State to prevent the spill or discharge of hazardous substances into waters in the State and to cause the removal of any such spills and discharges without undue delay.23 In accordance with the Act, the commission is the lead agency in spill response matters and shall conduct spill response for the state, and shall otherwise administer the provisions of the Act. The commission has also been designated by the Governor as the state's lead agency for Superfund activities and as the state's representative to the federal Regional Response Team in accordance with the Comprehensive Environmental Response, Compensation, and Liability Act, 42U.S.C. §§ 9601- 9675; the Water Pollution Prevention and Control Act, 33 U.S.C. §§ 12511387; and the National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR Part 300. Under the authority of the Solid Waste Disposal Act, the commission has broad removal authorities with respect to the cleanup of a release or threatened release of hazardous substances at a facility on the State registry. 24

Funding Mechanisms The executive director, with the approval of the commission, may execute agreements with the United States Environmental Protection Agency or any other federal agency that administers programs providing federal cooperation, assistance, grants, or loans for research, development, investigation, training, planning, studies, programming, and construction related to methods, procedures, and facilities for the collection, treatment, and disposal of waste and other water quality control activities. The commission is authorized to accept federal funds for these purposes and for other purposes consistent with the objectives of Chapter 26 of the TWC and may use the funds as prescribed by law or as provided by agreement.

Derek Seal General Counsel Texas Commission on Environmental Quality

23 TWC Chapter 26, Subchapter G. 24 THSC Chapter 361.

182 TCEQ/TSSWCB joint publication SFR-68/04 TCEQ/TSSWCB joint publication SFR-68/04 183 Appendix B Priority Water Bodies The following lists of priority water bodies are based on the Texas Water Quality Inventory and 303(d) List. In addition, the list includes some unimpaired water bodies targeted for pollution prevention efforts such as development of Watershed Protection Plans. The water bodies provided in these lists represent the state’s priorities for CWA §319(h) funding for both implementation and assessment activities as defined. However, funding is not limited to these water bodies. These lists are subject to change and will be revised as needed.

Surface Water Table B.1 Priority Water Bodies - Surface Water Segment Segment Name Parameter of Concern Assessment or Number Implementation 0101A Dixon Creek bacteria Assessment 0102 Lake Meredith mercury in walleye Assessment 0199A Palo Duro Reservoir depressed dissolved oxygen Assessment 0201A Mud Creek bacteria Assessment 0202D Pine Creek bacteria Assessment 0203A Big Mineral Creek bacteria Assessment 0207A Buck Creek bacteria Assessment 0211 Little Wichita River dissolved oxygen Assessment 0211 Little Wichita River total dissolved solids Assessment 0212 Lake Arrowhead See Segment 0211 Assessment 0213 Lake Kickapoo See Segment 0211 Assessment 0214A Beaver Creek depressed dissolved oxygen Assessment 0218 Wichita/North Fork Wichita selenium (chronic) in water Assessment River 0218A Middle Fork Wichita River selenium (chronic) in water Assessment 0299A Sweetwater Creek bacteria Assessment 0302 Wright Patman Lake high pH Assessment 0302 Wright Patman Lake depressed dissolved oxygen Assessment 0302 Wright Patman Lake high pH Assessment 0306 Upper South Sulphur River bacteria Assessment 0306 Upper South Sulphur River high pH Assessment 0306 Upper South Sulphur River depressed dissolved oxygen Assessment 0307 Cooper Lake high pH Assessment 0307 Cooper Lake depressed dissolved oxygen Assessment 0401 Caddo Lake low pH Assessment 0401 Caddo Lake mercury in largemouth bass and Assessment freshwater drum 0401 Caddo Lake depressed dissolved oxygen Assessment 0401A Harrison Bayou depressed dissolved oxygen Assessment 0402 Big Cypress Creek below Lake mercury in fish tissue Assessment O' the Pines 0402 Big Cypress Creek below Lake depressed dissolved oxygen Assessment O' the Pines 0402 Big Cypress Creek below Lake low pH Assessment O' the Pines

184 TCEQ/TSSWCB joint publication SFR-68/04 0402A Black Cypress Bayou depressed dissolved oxygen Assessment 0402A Black Cypress Bayou mercury in fish tissue Assessment 0402D Lake Daingerfield mercury in fish tissue Assessment 0403 Lake O' the Pines depressed dissolved oxygen Assessment 0404 Big Cypress Creek below Lake bacteria Assessment Bob Sandlin 0404B Tankersley Creek bacteria Assessment 0404D Welsh Reservoir selenium Assessment 0407 James' Bayou depressed dissolved oxygen Assessment 0409 Little Cypress Bayou (Creek) depressed dissolved oxygen Assessment 0502A Nichols Creek bacteria Assessment 0502A Nichols Creek depressed dissolved oxygen Assessment 0502A Nichols Creek chronic toxicity in water Assessment 0504 Toledo Bend Reservoir depressed dissolved oxygen Assessment 0504 Toledo Bend Reservoir mercury in largemouth bass and Assessment freshwater drum 0504C Palo Gaucho Bayou chronic toxicity in water Assessment 0505 Sabine River above Toledo bacteria Assessment Bend Reservoir 0505B Grace Creek depressed dissolved oxygen Assessment 0505B Grace Creek bacteria Assessment 0505D Rabbit Creek bacteria Assessment 0505E Brandy Branch Reservoir selenium Implementation Assessment 0505F Martin Creek Reservoir selenium Implementation Assessment 0505G Wards Creek depressed dissolved oxygen Assessment 0506 Sabine River below Lake bacteria Assessment Tawakoni 0507 Lake Tawakoni depressed dissolved oxygen Assessment 0507A Cowleech Fork Sabine River bacteria Assessment 0507B Long Branch bacteria Assessment 0508 Adams Bayou Tidal bacteria Assessment 0508 Adams Bayou Tidal depressed dissolved oxygen Assessment 0508A Adams Bayou above Tidal bacteria Assessment 0508B Gum Gully depressed dissolved oxygen Assessment 0508B Gum Gully bacteria Assessment 0508C Hudson Gully bacteria Assessment 0508C Hudson Gully depressed dissolved oxygen Assessment 0511 Cow Bayou Tidal bacteria Assessment 0511A Cow Bayou above Tidal depressed dissolved oxygen Assessment 0511B Coon Bayou depressed dissolved oxygen Assessment 0511B Coon Bayou bacteria Assessment 0511C Cole Creek bacteria Assessment 0511C Cole Creek depressed dissolved oxygen Assessment 0511E Terry Gully bacteria Assessment 0512A Running Creek bacteria Assessment 0512B Elm Creek bacteria Assessment 0603 B. A. Steinhagen Lake mercury in white and hybrid Assessment white/striped bass 0603A Sandy Creek bacteria Assessment 0604 Neches River below Lake lead (chronic) in water Assessment Palestine 0604A Cedar Creek bacteria Assessment

TCEQ/TSSWCB joint publication SFR-68/04 185 0604B Hurricane Creek bacteria Assessment 0605A Kickapoo Creek bacteria Assessment 0606 Neches River above Lake low pH Assessment Palestine 0606 Neches River above Lake zinc (acute) in water Assessment Palestine 0606 Neches River above Lake zinc (chronic) in water Assessment Palestine 0606A Prairie Creek bacteria Assessment 0607A Boggy Creek depressed dissolved oxygen Assessment 0607B Little Pine Island Bayou depressed dissolved oxygen Assessment 0608A Beech Creek depressed dissolved oxygen Assessment 0608B Big Sandy Creek bacteria Assessment 0608C Cypress Creek depressed dissolved oxygen Assessment 0608F Turkey Creek bacteria Assessment 0608G Lake Kimball mercury in fish tissue Assessment 0610 Sam Rayburn Reservoir mercury in largemouth bass and Assessment freshwater drum 0610 Sam Rayburn Reservoir depressed dissolved oxygen Assessment 0610A Ayish Bayou bacteria Assessment 0611 Angelina River above Sam bacteria Assessment Rayburn Reservoir 0611A East Fork Angelina River bacteria Assessment 0611A East Fork Angelina River lead (chronic) in water Assessment 0611A East Fork Angelina River lead in water Assessment 0611B La Nana Bayou bacteria Assessment 0611C Mud Creek bacteria Assessment 0612B Waffelow Creek bacteria Assessment 0615 Angelina River/Sam Rayburn mercury in largemouth bass and Assessment Reservoir freshwater drum 0615 Angelina River/Sam Rayburn impaired fish community Assessment Reservoir 0615 Angelina River/Sam Rayburn depressed dissolved oxygen Assessment Reservoir 0701 Taylor Bayou above Tidal depressed dissolved oxygen Assessment 0702A Alligator Bayou ambient toxicity in water Assessment 0702A Alligator Bayou ambient toxicity in sediment Assessment 0702A Alligator Bayou impaired fish community Assessment 0704 Hillebrandt Bayou depressed dissolved oxygen Assessment 0803 Lake Livingston depressed dissolved oxygen Assessment 0803 Lake Livingston high pH Assessment 0805 Upper Trinity River chlordane in tissue Implementation 0805 Upper Trinity River bacteria Assessment 0805 Upper Trinity River PCBs in fish tissue Assessment 0806 West Fork Trinity River below bacteria Assessment Lake Worth 0806 West Fork Trinity River below PCBs in fish tissue Assessment Lake Worth 0806 West Fork Trinity below Lake chlordane in tissue Implementation Worth 0806A Fosdic Lake chlordane in tissue Implementation 0806A Fosdic Lake DDE in tissue Implementation 0806A Fosdic Lake dieldrin in tissue Implementation 0806A Fosdic Lake PCBs in tissue Implementation

186 TCEQ/TSSWCB joint publication SFR-68/04 0806B Echo Lake PCBs in tissue Implementation 0820C Muddy Creek bacteria Assessment 0823 Lewisville Lake dissolved oxygen Implementation City of Denton Assessment 0823A Little Elm Creek bacteria Assessment 0824 Elm Fork Trinity River bacteria Assessment above Ray Roberts Lake 0829 Clear Fork Trinity River below PCBs in fish tissue Assessment Benbrook Lake 0829 Clear Fork Trinity below chlordane in tissue Implementation Benbrook Lake 0829A Lake Como chlordane in tissue Implementation 0829A Lake Como DDE in tissue Implementation 0829A Lake Como dieldrin in tissue Implementation 0829A Lake Como PCBs in tissue Implementation 0841 Lower West Fork Trinity River PCBs in fish tissue Assessment 0841 Lower West Fork Trinity River bacteria Assessment 0841 Lower West Fork Trinity chlordane in tissue Implementation 0841A Mountain Creek Lake chlordane in tissue Implementation 0841A Mountain Creek Lake DDD in tissue Implementation 0841A Mountain Creek Lake DDE in tissue Implementation 0841A Mountain Creek Lake DDT in tissue Implementation 0841A Mountain Creek Lake dieldrin in tissue Implementation 0841A Mountain Creek Lake heptachlor epoxide in fish tissue Implementation 0841A Mountain Creek Lake PCBs in tissue Implementation 1001 Houston Ship Channel nickel Implementation Assessment 1005 Houston Ship Channel / San nickel Implementation Jacinto River Tidal 1005 Houston Ship Channel/ dioxin in catfish and crab tissue Assessment San Jacinto River Tidal 1006 Houston Ship Channel Tidal nickel Implementation 1006 Houston Ship Channel Tidal PCBs in fish tissue Assessment 1006 Houston Ship Channel Tidal dioxin in catfish and crab tissue Assessment 1006 Houston Ship Channel Tidal pesticides in fish tissue Assessment 1006 Houston Ship Channel Tidal temperature Assessment 1006 Houston Ship Channel Tidal chronic toxicity in sediment Assessment 1006D Halls Bayou below US 59 bacteria Assessment 1006E Halls Bayou above US 59 bacteria Assessment 1006F Big Gulch above Tidal bacteria Assessment 1006H Spring Gully above Tidal bacteria Assessment 1006I Unnamed Tributary of Halls bacteria Assessment Bayou 1006J Unnamed Tributary of Halls bacteria Assessment Bayou 1007 Houston Ship Channel/Buffalo nickel Implementation Bayou Tidal Assessment 1007 Houston Ship Channel/Buffalo PCBs in fish tissue Assessment Bayou Tidal 1007 Houston Ship Channel/Buffalo pesticides in fish tissue Assessment Bayou Tidal

1007 Houston Ship Channel/Buffalo Assessment Bayou Tidal acute toxicity in sediment

TCEQ/TSSWCB joint publication SFR-68/04 187 1007 Houston Ship Channel/Buffalo dioxin in catfish and crab tissue Assessment Bayou Tidal 1007B Brays Bayou above Tidal bacteria Assessment 1007C Keegans Bayou above Tidal bacteria Assessment 1007D Sims Bayou above Tidal bacteria Assessment 1007E Willow Waterhole Bayou above bacteria Assessment Tidal 1007F Berry Bayou above Tidal bacteria Assessment 1007G Kuhlman Gully above Tidal bacteria Assessment 1007H Pine Gully above Tidal depressed dissolved oxygen Assessment 1007H Pine Gully above Tidal bacteria Assessment 1007I Plum Creek above Tidal depressed dissolved oxygen Assessment 1007I Plum Creek above Tidal bacteria Assessment 1007K Country Club Bayou above depressed dissolved oxygen Assessment Tidal 1007K Country Club Bayou above bacteria Assessment Tidal 1007L Unnamed Non-Tidal Tributary bacteria Assessment of Brays Bayou 1007M Unnamed Non-Tidal Tributary bacteria Assessment of Hunting Bayou 1007N Unnamed Non-Tidal Tributary bacteria Assessment of Sims Bayou 1007O Unnamed Non-Tidal Tributary bacteria Assessment of Buffalo Bayou 1007O Unnamed Non-Tidal Tributary depressed dissolved oxygen Assessment of Buffalo Bayou 1007P Brays Bayou above Tidal bacteria Assessment 1007Q Sims Bayou above Tidal depressed dissolved oxygen Assessment 1007Q Sims Bayou above Tidal bacteria Assessment 1007R Hunting Bayou above Tidal bacteria Assessment 1007R Hunting Bayou above Tidal depressed dissolved oxygen Assessment 1008 Spring Creek bacteria Assessment 1009 Cypress Creek bacteria Assessment 1013 Buffalo Bayou Tidal bacteria Assessment 1013 Buffalo Bayou Tidal nickel Assessment Implementation 1013A Little White Oak Bayou depressed dissolved oxygen Assessment 1013A Little White Oak Bayou bacteria Assessment 1013C Unnamed Non-Tidal Tributary bacteria Assessment of Buffalo Bayou Tidal 1014 Buffalo Bayou above Tidal bacteria Assessment 1014 Buffalo Bayou above Tidal nickel Assessment Implementation 1014H South Mayde Creek bacteria Assessment 1014K Turkey Creek bacteria Assessment 1014M Neimans Bayou bacteria Assessment 1014M Neimans Bayou depressed dissolved oxygen Assessment 1014N Rummel Creek bacteria Assessment 1014O Spring Branch bacteria Assessment 1016 Greens Bayou above Tidal bacteria Assessment

1016 Greens Bayou above Tidal nickel Assessment Implementation 1016A Garners Bayou bacteria Assessment

188 TCEQ/TSSWCB joint publication SFR-68/04 1016B Unnamed Tributary of Greens bacteria Assessment Bayou 1016C Unnamed Tributary of Greens bacteria Assessment Bayou 1016D Unnamed Tributary of Greens bacteria Assessment Bayou 1016D Unnamed Tributary of Greens depressed dissolved oxygen Assessment Bayou 1017 Whiteoak Bayou above Tidal nickel Assessment Implementation 1017 Whiteoak Bayou above Tidal bacteria Assessment 1017A Brickhouse Gully/Bayou bacteria Assessment 1017B Cole Creek bacteria Assessment 1017D Unnamed Tributary of White depressed dissolved oxygen Assessment Oak Bayou 1017D Unnamed Tributary of White bacteria Assessment Oak Bayou 1017E Unnamed Tributary of White bacteria Assessment Oak Bayou 1101 Clear Creek Tidal chlordane in tissue Implementation 1101 Clear Creek Tidal bacteria Implementation 1101 Clear Creek Tidal dichloroethane in fish and crab tissue Implementation 1101 Clear Creek Tidal trichloroethane in tissue Implementation 1101B Chigger Creek bacteria Implementation 1102 Clear Creek above Tidal chlordane in tissue Implementation 1102 Clear Creek above Tidal dichloroethane in fish and crab tissue Implementation 1102 Clear Creek above Tidal bacteria Implementation 1102 Clear Creek above Tidal trichloroethane in tissue Implementation 1102A Cowart Creek bacteria Assessment 1102B Mary's Creek/ North Fork bacteria Assessment Mary's Creek 1103 Dickinson Bayou Tidal bacteria Assessment 1103 Dickinson Bayou Tidal depressed dissolved oxygen Assessment 1103A Bensons Bayou bacteria Assessment 1103B Bordens Gully bacteria Assessment 1103C Geisler Bayou bacteria Assessment 1103D Gum Bayou bacteria Assessment 1104 Dickinson Bayou local bacteria Assessment Initiative Watershed Plan 1113 Armand Bayou above Tidal dissolved oxygen Implementation Assessment 1113A Armand Bayou above Tidal bacteria Assessment 1202H Allen's Creek bacteria Assessment 1202J Big Creek bacteria Assessment 1205 Lake Granbury bacteria Implementation Assessment 1209 Navasota River below bacteria Assessment Lake Limestone 1209C Carters Creek bacteria Assessment 1209G Cedar Creek bacteria Assessment 1209I Gibbons Creek bacteria Assessment 1209I Gibbons Creek depressed dissolved oxygen Assessment 1209J Shepherd Creek bacteria Assessment 1209K Steele Creek bacteria Assessment 1210A Navasota River above bacteria Assessment

TCEQ/TSSWCB joint publication SFR-68/04 189 Lake Mexia 1211A Davidson Creek bacteria Assessment 1212 Somerville Lake low and high pH Assessment 1212B East Yegua Creek bacteria Assessment 1214 Colorado River choloride Assessment 1214 Colorado River sulfate Assessment 1214 Colorado River total dissolved solids Assessment 1217 Lampasas River above bacteria Assessment Stillhouse Hollow Lake 1217A Rocky Creek depressed dissolved oxygen Assessment 1218 Nolan Creek/ South Nolan bacteria Assessment Creek 1221 Leon River Below Proctor Lake bacteria Assessment 1222 Proctor Lake depressed dissolved oxygen Assessment 1222A Duncan Creek bacteria Assessment 1226 North Bosque River orthophosphorus Implementation 1226B Green Creek bacteria Assessment 1226E Indian Creek bacteria Assessment 1226F Sims Creek bacteria Assessment 1227 Nolan River bacteria Assessment 1242 Brazos River above bacteria Assessment Navasota River 1242D Thompson Creek bacteria Assessment 1242D Thompson Creek depressed dissolved oxygen Assessment 1242I Campbells Creek bacteria Assessment 1242K Mud Creek bacteria Assessment 1242L Pin Oak Creek bacteria Assessment 1242M Spring Creek bacteria Assessment 1242N Tehuacana Creek bacteria Assessment 1242P Big Creek bacteria Assessment 1243 Salado Creek depressed dissolved oxygen Assessment 1245 Upper Oyster Creek depressed dissolved oxygen Assessment 1245 Upper Oyster Creek bacteria Assessment 1246E Wasp Creek bacteria Assessment 1247 Lake Granger Watershed Plan sediment Assessment Implementation 1247A Willis Creek bacteria Assessment 1248 San Gabriel/North Fork San total dissolved solids Assessment Gabriel River 1254 Aquilla Reservoir atrazine in finished drinking water Assessment 1254 Aquilla Reservoir atrazine in finished drinking water Implementation 1255 Upper North BosqueRiver orthophosphorus Implementation 1255A Goose Branch bacteria Assessment 1255B North Fork Upper North bacteria Assessment Bosque River 1255C Scarborough Creek bacteria Assessment 1255D South Fork North Bosque River bacteria Assessment 1255E Unnamed tributary of Goose bacteria Assessment Branch 1255F Unnamed tributary of bacteria Assessment Scarborough Creek 1255G Woodhollow Branch bacteria Assessment 1302 San Bernard River above Tidal bacteria Assessment 1305 Caney Creek above Tidal bacteria Assessment

190 TCEQ/TSSWCB joint publication SFR-68/04 1403 Lake Austin dissolved oxygen Implementation 1403A Bull Creek impaired macrobenthos community Assessment 1403J Spicewood Tributary to Shoal bacteria Assessment Creek 1403K Taylor Slough South bacteria Assessment 1411 E.V. Spence Reservoir sulfate Implementation 1411 E.V. Spence Reservoir total dissolved solids Implementation 1411 E.V. Spence Reservoir total dissolved solids Assessment 1420 Pecan Bayou above Lake depressed dissolved oxygen Assessment Brownwood 1421 Concho River impaired macrobenthos community Implementation Assessment 1422 Lake Nasworthy See Segments 1421 & 1425 Implementation Assessment 1423 Twin Buttes Reservoir See Segments 1421 & 1425 Implementation Assessment 1424 Middle Concho/South Concho See Segments 1421 & 1425 Implementation River Assessment 1425 O.C. Fisher Lake total dissolved solids Implementation Assessment 1425 O.C. Fisher Lake chloride Implementation Assessment 1426 Colorado River below E. V. chloride Assessment Spence Reservoir 1426 Colorado River below E. V. total dissolved solids Assessment Spence Reservoir 1427 Onion Creek depressed dissolved oxygen Assessment 1427A Slaughter Creek impaired macrobenthos community Assessment 1428C Gilleland Creek bacteria Implementation 1429B Eanes Creek bacteria Assessment 1429C Waller Creek impaired macrobenthos community Assessment 1604 Lake Texana depressed dissolved oxygen Assessment 1801 Guadalupe River Tidal depressed dissolved oxygen Assessment 1803A Elm Creek bacteria Assessment 1803B Sandies Creek bacteria Assessment 1803C Peach Creek bacteria Assessment 1806 Guadalupe River above bacteria Assessment Canyon Lake 1806A Camp MeetingCreek depressed dissolved oxygen Assessment 1901 Lower San Antonio River bacteria Assessment 1906 Lower Leon Creek bacteria Assessment 1906 Lower Leon Creek depressed dissolved oxygen Assessment 1908 Upper Cibolo Creek depressed dissolved oxygen Assessment 1910 Salado Creek dissolved oxygen Implementation 1910 Salado Creek bacteria Assessment 1910 Salado Creek depressed dissolved oxygen Assessment 1910A Walzem Creek bacteria Assessment 1911 Upper San Antonio River bacteria Implementation Assessment 1913 Mid Cibolo Creek depressed dissolved oxygen Assessment 2104 Nueces River above Frio River depressed dissolved oxygen Assessment 2107 Atascosa River bacteria Assessment 2110 Lower Sabinal River nitrate+nitrite nitrogen Assessment 2113 Upper Frio River depressed dissolved oxygen Assessment

TCEQ/TSSWCB joint publication SFR-68/04 191 2116 Choke Canyon Reservoir total dissolved solids Assessment 2116 Choke Canyon Reservoir bacteria Assessment 2117 Frio River above Choke bacteria Assessment Canyon Reservoir 2117 Frio River Above Choke depressed dissolved oxygen Assessment Canyon Reservoir 2201 Arroyo Colorado Tidal depressed dissolved oxygen Implementation Assessment 2201 Arroyo Colorado Tidal ambient toxicity in sediment Assessment 2202 Arroyo Colorado above Tidal organic compounds in fish tissue Assessment 2202 Arroyo Colorado above Tidal chlordane in tissue Implementation 2201 Arroyo Colorado depressed dissolved oxygen Implementation Assessment 2202 Arroyo Colorado above Tidal DDE in tissue Implementation 2202 Arroyo Colorado above Tidal other organic compounds in tissue Implementation 2202 Arroyo Colorado above Tidal toxaphene in tissue Implementation 2202A Donna Reservoir PCBs in tissue Implementation 2304 Rio Grande below Amistad ambient toxicity in water Assessment Reservoir 2306 Rio Grande above Amistad ambient toxicity in water Assessment Reservoir 2306 Rio Grande above Amistad bacteria Assessment Reservoir 2307 Rio Grande below Riverside bacteria Assessment Diversion Dam 2310 Lower Pecos River chloride Implementation Assessment 2310 Lower Pecos River sulfate Implementation Assessment 2310 Lower Pecos River total dissolved solids Implementation Assessment 2311 Upper Pecos River See Segment 2310 Implementation Assessment 2314 Rio Grande above bacteria Assessment International Dam 2421 Upper Galveston Bay bacteria (oyster waters) Assessment 2421 Upper Galveston Bay dioxin in catfish and crab tissue Assessment 2422 Trinity Bay bacteria (oyster waters) Assessment 2423 East Bay bacteria (oyster waters) Assessment 2424 West Bay bacteria (oyster waters) Assessment 2424A Highland Bayou bacteria Assessment 2424A Highland Bayou depressed dissolved oxygen Assessment 2424C Marchand Bayou depressed dissolved oxygen Assessment 2424C Marchand Bayou bacteria Assessment 2425 Robinson Bayou bacteria Implementation 2425B Jarbo Bayou bacteria Assessment 2425C Robinson Bayou bacteria Assessment 2426 Tabbs Bay nickel Implementation Assessment 2426 Tabbs Bay bacteria Assessment 2426 Tabbs Bay dioxin Assessment 2427 San Jacinto Bay dioxin Assessment 2428 Black Duck Bay dioxin Assessment 2428 Black Duck Bay nickel Assessment Implementation

192 TCEQ/TSSWCB joint publication SFR-68/04 2429 Scott Bay bacteria Assessment 2429 Scott Bay dioxin Assessment 2429 Scott Bay nickel Assessment Implementation 2430 Burnett Bay dioxin Assessment 2430 Burnett Bay nickel Assessment Implementation 2432 Chocolate Bay bacteria (oyster waters) Assessment 2436 Barbours Cut dioxin Assessment 2436 Barbours Cut nickel Assessment Implementation 3438 Bayport Channel dioxin Assessment 2439 Lower Galveston Bay bacteria (oyster waters) Assessment 2441 East Matagorda Bay bacteria (oyster waters) Assessment 2442 Cedar Lakes bacteria (oyster waters) Assessment 2451 Matagorda Bay/Powderhorn bacteria (oyster waters) Assessment Lake 2451 Matagorda Bay/Powderhorn depressed dissolved oxygen Assessment Lake 2452 Tres Palacios Bay/Turtle Bay bacteria (oyster waters) Assessment 2452 Tres Palacios Bay/Turtle Bay depressed dissolved oxygen Assessment 2453 Lavaca Bay/Chocolate Bay depressed dissolved oxygen Assessment 2453 Lavaca Bay/Chocolate Bay mercury in water Assessment 2453 Lavaca Bay/Chocolate Bay bacteria (oyster waters) Assessment 2453 Lavaca Bay/Chocolate Bay mercury in fish and crab tissue Assessment 2456 Carancahua Bay high pH Assessment 2456 Carancahua Bay depressed dissolved oxygen Assessment 2456 Carancahua Bay bacteria (oyster waters) Assessment 2462 San Antonio Bay/Hynes bacteria (oyster waters) Assessment Bay/Guadalupe Bay 2472 Copano Bay/Port Bay/Mission bacteria (oyster waters) Assessment Bay 2482 Nueces Bay zinc in oyster tissue Assessment 2482 Nueces Bay selenium Assessment 2483A Oso Creek depressed dissolved oxygen Assessment 2485 Oso Bay depressed dissolved oxygen Implementation Assessment 2491 Laguna Madre depressed dissolved oxygen Assessment 2501 Gulf of Mexico mercury in king mackerel > 43 inches Assessment 2501 Gulf of Mexico depressed dissolved oxygen Assessment

TCEQ/TSSWCB joint publication SFR-68/04 193 Groundwater Table B.2 Priority Water Bodies - Groundwater

Aquifer Region Constituent(s) of Concern Implementation or Assessment?

Edward (BFZ) Central Texas Vulnerability Implementation Assessment

Cenezoic Pecos Alluvium West Texas Nitrate, Chloride, Sulfate, Assessment and TDS

Edwards Trinity (Plateau) Terrell, Reagan, and Nitrate Assessment Crockett Counties

Ogallala Southern High Plains, Nitrate Assessment Panhandle

Gulf Coast Rio Grande Valley Nitrate, Iron, TDS Assessment

Seymour North Central Nitrate, Vulnerability Assessment

Blaine North Central Nitrate, Chloride, Iron, Assessment Sulfate, TDS

Lipan Concho, Runnels, Tom Nitrate, Chloride, TDS Assessment Green, and Coke Counties

Bone Spring-Victorio Peak Far West Texas Nitrate, Chloride, Assessment Fluoride, Sulfate, TDS

Trinity Central Texas North - Nitrate Assessment Outcrop Area Only

Dockum Panhandle, West Texas - Nitrate Assessment Outcrop Area Only

Edwards-Trinity (High Southern High Plains Nitrate Assessment Plains)

Marathon Big Bend Area Nitrate Assessment

Capitan Reef West Texas Chloride, Dissolved Assessment Solids, Radioactivity

Hickory Llano Uplift Radioactivity Assessment

Hueco - Mesilla Far West Texas Sulfate Assessment

Brazos River Alluvium Southeast Texas Iron, Manganese Assessment

Rustler Culberson, Reeves Iron, Sulfate, TDS, Assessment Counties Radioactivity

194 TCEQ/TSSWCB joint publication SFR-68/04 APPENDIX C OVERVIEW OF CURRENT PRIORITY WATERSHEDS, MILESTONES, AND ESTIMATED TIMELINES Priority Water Body Summary

The Milestone Summary Table presents an overview of estimated completion times for milestones on Texas’ priority waterbodies. The individual tables for priority waterbodies, which follow the Milestone Summary Table, provide similar information but in greater detail.

Milestones:

A. Stakeholder Group -Employ or develop a Local Watershed Committee to solicit input and encourage the participation of affected stakeholders in the decision-making process.

B. Data Review -Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

C. Targeted Assessment -Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and distribution of pollutants.

D. Modeling -Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

E. Action Plan -Develop a detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

F. Implementation -Implement voluntary and regulatory actions in the watershed and adjust the BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 195 Table C.1. Milestone Summary Table Waterbody 2005 2006 2007 2008 2009 2010

Assessing AquaticLife Use Targeted Modeling Action Plan in Tidal Streams Assessment

Aquilla Reservoir Implementation Implementation Implementation Implementation Implementation Implementation

Armand Bayou Local Initiative Action Plan Watershed Plan Implementation Implementation Implementation Implementation Implementation Implementation

Arroyo Colorado-D.O. Action Plan Implementation Implementation Implementation Implementation Implementation Implementation

Arroyo Colorado Legacy Targeted Targeted Pollutants Implementation Assessment Assessment Implementation Implementation Implementation Implementation Implementation

Brandy Branch Reservoir Implementation Implementation Implementation Implementation Implementation Implementation

Buck Creek Targeted Action Plan Implementation Assessment Implementation Implementation Implementation

Implementation Implementation

Buffalo and White Oak Bayous Data Review Action Plan Action Plan Implementation Implementation Implementation Targeted Implementation Assessment

Cedar Lake Stakeholder Group Action Plan

Implementation Targeted Implementation Implementation Implementation Implementation Assessment

Modeling

Stakeholder Group Targeted Action Plan City of Denton Watershed Plan Assessment Implementation Implementation Implementation (Hickory Creek) Data Review Implementation Implementation

196 TCEQ/TSSWCB joint publication SFR-68/04 Waterbody 2005 2006 2007 2008 2009 2010

Clear Creek Legacy and VOC Targeted Targeted Targeted Targeted Targeted Targeted Pollutants Assessment Assessment Assessment Assessment Assessment Assessment

Implementation Implementation Implementation Implementation Implementation Implementation

Clear Creek Watershed Targeted Implementation Implementation Implementation Assessment Implementation Implementation

Implementation

Clear Fork of the Trinity Action Plan

Coastal Bend Bays Plan Implementation Implementation Implementation Implementation Implementation Implementation

Colorado and San Gabriel Modeling Action Plan Rivers, Brushy and Petronilla Implementation Implementation Implementation Implementation Creeks Implementation Implementation

Concho River Basin Stakeholder Group Targeted Action Plan Assessment Implementation Implementation Implementation

Data Review Implementation Implementation

Copano Bay Oysters Stakeholder Group Implementation Implementation Implementation Implementation Implementation Modeling

Action Plan

Implementation

Dallas Legacy Pollutants Targeted Targeted Targeted Targeted Targeted Targeted Assessment Assessment Assessment Assessment Assessment Assessment

Implementation Implementation Implementation Implementation Implementation Implementation

Dickinson Bayou Action Plan Implementation Implementation Implementation Implementation Modeling Implementation

TCEQ/TSSWCB joint publication SFR-68/04 197 Waterbody 2005 2006 2007 2008 2009 2010

E.V. Spence Implementation Implementation Implementation Implementation Implementation Implementation

Fort Worth Legacy Pollutants Targeted Targeted Targeted Targeted Targeted Targeted Assessment Assessment Assessment Assessment Assessment Assessment

Implementation Implementation Implementation Implementation Implementation Implementation

Galveston Bay Plan Implementation Implementation Implementation Implementation Implementation Implementation

Gilliand Creek Stakeholder Group Action Plan Implementation Implementation Implementation Implementation Modeling Implementation

Implementation

Guadalupe above Canyon Stakeholder Group Action Plan

Implementation Modeling Implementation Implementation Implementation Implementation Implementation

Gulf Coast Oyster Waters Action Plan Implementation Implementation Implementation Implementation Implementation Implementation

Houston Ship Channel Modeling Modeling Action Plan Action Plan Dioxin Study Implementation Implementation Implementation Implementation Implementation Implementation

Houston Ship Channel Implementation Implementation Implementation Implementation Implementation Implementation Nickel Study

Lake Austin Implementation Implementation Implementation Implementation Implementation Implementation

Lake Granbury Stakeholder Group Targeted Action Plan Assessment Implementation Implementation Implementation

Data Review Implementation Implementation

198 TCEQ/TSSWCB joint publication SFR-68/04 Waterbody 2005 2006 2007 2008 2009 2010

Lake Granger Watershed Plan Stakeholder Group Stakeholder Group Targeted Action Plan Assessment Implementation Implementation

Implementation Implementation Implementation Implementation

Action Plan Implementation Implementation Implementation Implementation Implementation Lake ‘O the Pines Implementation

Implementation Implementation Implementation Implementation Implementation Implementation Lavaca and Chocolate Bays

Little Wichita Stakeholder Group Targeted Action Plan Assessment Implementation Implementation Implementation

Data Review Implementation Implementation

Martin Creek Reservoir Implementation Implementation Implementation Implementation Implementation Implementation

Matagorda Bay / Stakeholder Group Action Plan Tres Palacios Bay Implementation Modeling Implementation Implementation Implementation Implementation Implementation

Modeling Middle Brazos River Basin Implementation Implementation Implementation Implementation Implementation Action Plan

North Bosque River Implementation Implementation Implementation Implementation Implementation Implementation

Nueces Bay Zinc Project Action Plan Action Plan Implementation Implementation Implementation Implementation Implementation Implementation

Orange County Modeling Action Plan Implementation Implementation Implementation Implementation Implementation Implementation

TCEQ/TSSWCB joint publication SFR-68/04 199 Waterbody 2005 2006 2007 2008 2009 2010

Oso Bay Targeted Modeling Action Plan Assessment Implementation Implementation Implementation

Modeling Action Plan Implementation

Stakeholder Group Action Plan Oso Creek and Oso Bay Data Review Implementation Implementation Implementation Implementation Implementation Targeted Assessment

Modeling

Pecos Watershed Plan Stakeholder Group Targeted Action Plan Assessment Implementation Implementation Implementation

Data Review Implementation Implementation

Sabinal River Stakeholder Group Action Plan

Implementation Targeted Implementation Implementation Implementation Implementation Assessment

Modeling

Salado Creek Implementation Implementation Implementation Implementation Implementation Implementation

San Antonio River Authority Stakeholder Group Targeted Action Plan Assessment Implementation Implementation Implementation

Data Review Implementation Implementation

San Antonio River Basin, Leon Modeling Modeling Action Plan River, and Peach Creek Implementation Implementation Implementation Implementation Implementation Implementation

South Central Texas Modeling Implementation Implementation Implementation Implementation Implementation Action Plan

200 TCEQ/TSSWCB joint publication SFR-68/04 Waterbody 2005 2006 2007 2008 2009 2010

Tarrant Regional Water District Stakeholder Group Targeted Targeted Targeted Targeted Targeted Watershed Plans Assessment Assessment Assessment Assessment Assessment

Data Review Action Plan

Targeted Assessment Implementation Implementation Implementation Implementation Implementation Modeling

Implementation

Trinity River Stakeholder Group Action Plan Implementation Implementation Implementation Implementation Modeling Implementation

Upper Oyster Creek Targeted Targeted Action Plan Assessment Assessment Implementation Implementation Implementation

Modeling Modeling Implementation

Welsh Reservoir Implementation Implementation Implementation Implementation Implementation

TCEQ/TSSWCB joint publication SFR-68/04 201 Table C.2. Individual Priority Waterbody Tables

Armand Bayou Local Initiative Watershed Plan-dissolved oxygen Segment 1113

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (1997) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1997) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. (1999)-no Analyze data, assess loadings, and aquatic life determine the origin and distribution of impairment pollutants. found

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, projected IP, or WPP) which establishes overall completion goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

202 TCEQ/TSSWCB joint publication SFR-68/04 Assessing Aquatic Life Use in Tidal Streams -dissolved oxygen Segments 0511, 1501, 2453A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2004) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and X determine the origin and distribution of pollutants.

Develop and apply model(s) to UAA determine numerical load allocations. to be Recommend control strategies for developed implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP implementation based on follow-up X X X X X verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 203 Aquilla Reservoir -Atrazine Segment 1254

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (1998) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1998) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2000) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend omitted control strategies for implementation.

Develop A detailed action plan (TMDL, IP, TMDL - or WPP) which establishes overall goals (2002) and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the WQS met - X X X X X X BMP implementation based on follow-up routine verification monitoring of effectiveness. monitoring continues

204 TCEQ/TSSWCB joint publication SFR-68/04 Arroyo Colorado -dissolved oxygen Segment 2201

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (1998) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1998) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2000) X X X determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend Standards control strategies for implementation. unattainable

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy X for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (2000) X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 205 Arroyo Colorado Legacy Pollutants -DDE, DDT, DDD, Dieldrin, Endrin, Lindane, Hexachlorobenzene, Heptachlor, Heptachlor Epoxide, Chlordane, Toxaphene, PCBs Segments 2201, 2202, 2202A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (1998) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1998) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. tissue tissue Analyze data, assess loadings, and (1999) samples samples determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. (1999) Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, TMDL - IP, or WPP) which establishes overall (2001) goals and objectives, load allocations, revised-2003 strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (1998) X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

206 TCEQ/TSSWCB joint publication SFR-68/04 Brandy Branch Reservoir -selenium Segment 0505E

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (2001) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2001) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. advisory Analyze data, assess loadings, and rescinded determine the origin and distribution of (2004) pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, proposed or WPP) which establishes overall goals delisting and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 207 Buck Creek -bacteria Segments 0207A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the (2003) participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / (2003) nonpoint sources, land use data, and all known stressors influencing water quality

Complete water quality monitoring. Analyze data, assess loadings, and determine the X origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

208 TCEQ/TSSWCB joint publication SFR-68/04 Buffalo and Whiteoak Bayous -bacteria Segments 1013, 1014, 1017

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (2000) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2001) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and X determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall TMDL IP goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 209 Cedar Lake- bacteria Segments 2442

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the X participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the X origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

210 TCEQ/TSSWCB joint publication SFR-68/04 City of Denton Watershed Plan (Hickory Creek) -bacteria Segment 0823

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input X and encourage the participation of affected stakeholders in the decision- making process.

Complete the assessment of pollutant projected problems by reviewing existing water completion quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. projected Analyze data, assess loadings, and completion determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan projected (TMDL, IP, or WPP) which completion establishes overall goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust X X X X X X the BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 211 Clear Creek Legacy and VOC Pollutants -chlordane, trichloroethane, dichloroethane Segments 1101, 1102

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed (1998) Committee to solicit input and encourage Technical the participation of affected stakeholders Advisory in the decision-making process. Committee for VOCs

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2000) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. tissue con’td. Analyze data, assess loadings, and (2001) samples sampling X X X X determine the origin and distribution of 2000-2005 pollutants.

Develop and apply model(s) to determine numerical load allocations. omitted Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, TMDL - poss. IP, or WPP) which establishes overall 2001 revision if goals and objectives, load allocations, samples strategy for load allocation, timetable for IP- 2003 show no implementation, and a list of expected decline results.

Implement voluntary and regulatory actions in the watershed and adjust the (2001) X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

212 TCEQ/TSSWCB joint publication SFR-68/04 Clear Creek Watershed - total dissolved solids, bacteria Segment 1101, 1101B, 1102, 1102A, 1102B, 2425

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the 2003 participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the X origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 213 Clear Fork of the Trinity River -dissolved oxygen Segments 0831, 0833

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the (2000) participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / (2000) nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the (2001) origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend omitted control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals UAA being and objectives, load allocations, strategy for developed load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP implementation based on follow-up verification monitoring of effectiveness.

214 TCEQ/TSSWCB joint publication SFR-68/04 Coastal Bend Bays Plan

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and (1998) encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1998) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and Ongoing determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, (1998) strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (1998) X X X X X X BMP implementation based on follow- up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 215 Colorado and San Gabriel Rivers, Brushy and Petronilla Creeks -chloride, sulfate, total dissolved solids (TDS) Segments1214, 1244, 1426, 2204

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and (2002) encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2003) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2004) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. X Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, X strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (2002) X X X X X X BMP implementation based on follow- up verification monitoring of effectiveness.

216 TCEQ/TSSWCB joint publication SFR-68/04 Concho River Basin- impaired macrobenthos community, chloride, total dissolved solids Segments 1421, 1422, 1423, 1424, 1425

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and X encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant projected problems by reviewing existing water completion quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. projected Analyze data, assess loadings, and completion determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, projected IP, or WPP) which establishes overall completion goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow- up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 217 Copano Bay Oysters - bacteria Segments 2472

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the X participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

218 TCEQ/TSSWCB joint publication SFR-68/04 Dallas Legacy Pollutants - chlordane, DDT, DDD, DDE, Dieldrin, Heptachlor Epoxide, PCBs Segments 805, 841, 841A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the (2000) participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / (2000) nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze tissue con’t. data, assess loadings, and determine the (2000) samples sampling X X X X origin and distribution of pollutants. 2000-2005

Develop and apply model(s) to determine numerical load allocations. Recommend omitted control strategies for implementation.

Develop A detailed action plan (TMDL, IP, TMDL - poss. or WPP) which establishes overall goals and (2001) revision if objectives, load allocations, strategy for load samples allocation, timetable for implementation, and show no a list of expected results. decline

Implement voluntary and regulatory actions in the watershed and adjust the BMP (2001) X X X X X X implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 219 Dickinson Bayou -dissolved oxygen Segment 1103

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and (2000) encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory (2001) of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2004) determine the origin and distribution of pollutants.

Develop and apply model(s) to new determine numerical load allocations. (2004) model Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, X strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X BMP implementation based on follow- up verification monitoring of effectiveness.

220 TCEQ/TSSWCB joint publication SFR-68/04 E.V. Spence -sulfate, total dissolved solids Segment 1411

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the (1999) participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint (1998) sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the origin (2000) and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend omitted control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or TMDL - WPP) which establishes overall goals and (2003) objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP (2001) X X X X X X implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 221 Ft. Worth Legacy Pollutants -chlordane, DDE, Dieldrin, PCBs Segments 806, 806A, 806B, 829, 829A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage omitted the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2000) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze tissue con’td data, assess loadings, and determine the (2000) samples sampling X X X X origin and distribution of pollutants. 2000-2005

Develop and apply model(s) to determine numerical load allocations. Recommend omitted control strategies for implementation.

Develop A detailed action plan (TMDL, IP, poss. or WPP) which establishes overall goals (2001) revision if and objectives, load allocations, strategy samples for load allocation, timetable for show no implementation, and a list of expected decline results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP (2001) X X X X X X implementation based on follow-up verification monitoring of effectiveness.

222 TCEQ/TSSWCB joint publication SFR-68/04 Galveston Bay Plan- bacteria Segment

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the (1994) participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality (1994) data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Ongoing Analyze data, assess loadings, and determine the origin and distribution of pollutants. Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and (1994) objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP (1994) X X X X X X implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 223 Gilleland Creek - bacteria Segment 1428C

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the X participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

224 TCEQ/TSSWCB joint publication SFR-68/04 Guadalupe above Canyon - bacteria Segment 1806

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the X participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 225 Gulf Coast Oyster Waters -bacteria Segments 2421, 2422, 2423, 2424, 2432, 2439, 2441, 2442, 2451, 2452, 2453, 2456, 2462, 2472

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (2001) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2002) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2002) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend (2003) BST to be control strategies for implementation. completed

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy X X for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

226 TCEQ/TSSWCB joint publication SFR-68/04 Houston Ship Channel -dioxin Segments 0901,1001, 1005, 1006, 1007, 2421, 2426, 2427, 2428, 2429, 2430, 2436, 2438

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (2000) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2001) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and X determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall TMDL IP goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 227 Houston Ship Channel -nickel Segments 1001, 1005, 1006, 1007, 1013, 1014, 1016, 1017, 2426, 2427, 2428, 2429, 2430, 2436

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and (1999) encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1990) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (1998) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. (1998) Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall (2001) goals and objectives, load allocations, TMDL strategy for load allocation, timetable for implementation, and a list of (2003) expected results. IP

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow- up verification monitoring of effectiveness.

228 TCEQ/TSSWCB joint publication SFR-68/04 Lake Austin-dissolved oxygen Segment 1403

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the (1999) participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / (1999) nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the (2000) origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend omitted control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and EPA objectives, load allocations, strategy for load recommend- allocation, timetable for implementation, and ation to a list of expected results. delist (2001)

Implement voluntary and regulatory actions in the watershed and adjust the BMP (2001) X X X X X X implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 229 Lake Granbury- bacteria Segments 1205

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and X encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant projected problems by reviewing existing water completion quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. projected Analyze data, assess loadings, and completion determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, projected IP, or WPP) which establishes overall completion goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

230 TCEQ/TSSWCB joint publication SFR-68/04 Lake Granger Watershed Plan-sediment Segments 1247

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage X the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant projected problems by reviewing existing water completion quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. projected Analyze data, assess loadings, and completion determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, projected IP, or WPP) which establishes overall completion goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 231 Lake O’the Pines -dissolved oxygen Segment 0403

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (1998) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1999) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2002) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend (2003) control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy X for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (1999) X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

232 TCEQ/TSSWCB joint publication SFR-68/04 Lavaca and Chocolate Bays -mercury and dissolved oxygen Segment 2453

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and (2001) encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2002) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2003)- determine the origin and distribution of indicated pollutants. TMDL not necessary

Develop and apply model(s) to determine numerical load allocations. omitted Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, proposed IP, or WPP) which establishes overall delisting goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (2001) X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 233 Little Wichita- dissolved oxygen, total dissolved solids Segments 0211, 0212

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and X encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant projected problems by reviewing existing water completion quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. projected Analyze data, assess loadings, and completion determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, projected IP, or WPP) which establishes overall completion goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow- up verification monitoring of effectiveness.

234 TCEQ/TSSWCB joint publication SFR-68/04 Martin Creek Reservoir -selenium Segment 0505F

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and (2001) encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2001) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. advisory Analyze data, assess loadings, and rescinded determine the origin and distribution of (2004) pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, proposed IP, or WPP) which establishes overall delisting goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 235 Matagorda Bay / Tres Palacios Bay - dissolved oxygen Segments 2451, 2452, 2456, 2483A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the X participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

236 TCEQ/TSSWCB joint publication SFR-68/04 Middle Brazos River Basin -dissolved oxygen Segments 1217A, 1243

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and omitted encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2001) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2004) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. X Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, X X strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (1999) X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 237 North Bosque River -nutrients Segments 1226, 1255

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (1995) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1996) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2000) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend (2000) X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals (2001) and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (2002) X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

238 TCEQ/TSSWCB joint publication SFR-68/04 Nueces Bay Zinc Project -selenium, zinc Segment 2482

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (2001) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2002) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2003) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend (2004) control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals TMDL IP and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the (2002) X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 239 Orange County -bacteria, dissolved oxygen, pH Segment 0511, 0511A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the (2002) participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / (2002) nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the (2004) origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for X load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP (2003) X X X X X X implementation based on follow-up verification monitoring of effectiveness.

240 TCEQ/TSSWCB joint publication SFR-68/04 Oso Bay -dissolved oxygen Segments 2485, 2491

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the (2000) participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / (2000) nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the X origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for X X load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP (1999) X X X X X X implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 241 Oso Creek, Oso Bay - Bacteria Segment 2485, 2485A

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the X participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / X nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the X origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

242 TCEQ/TSSWCB joint publication SFR-68/04 Pecos Watershed Plan- chloride, sulfate, and total dissolved solids Segments 2310, 2311

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and X encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant projected problems by reviewing existing water completion quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. projected Analyze data, assess loadings, and completion determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, projected IP, or WPP) which establishes overall completion goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow- up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 243 Sabinal River - nitrate-nitrite Segment 2110

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the X participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the X origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

244 TCEQ/TSSWCB joint publication SFR-68/04 Salado Creek -dissolved oxygen Segment 1910

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (1998) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (1998) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2000) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend (2001) control strategies for implementation

Develop A detailed action plan (TMDL, IP, TMDL - or WPP) which establishes overall goals (2002) and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the IP was X X X X X X BMP implementation based on follow-up determined verification monitoring of effectiveness. unnecessary

TCEQ/TSSWCB joint publication SFR-68/04 245 San Antonio River Authority- bacteria Segment 1911

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and X encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant projected problems by reviewing existing water completion quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. projected Analyze data, assess loadings, and completion determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for implementation.

Develop A detailed action plan (TMDL, projected IP, or WPP) which establishes overall completion goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow- up verification monitoring of effectiveness.

246 TCEQ/TSSWCB joint publication SFR-68/04 San Antonio River Basin, Leon River, and Peach Creek -bacteria Segments 1221, 1803C, 1901, 1910, 1910A, 1911

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (2003) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2001) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2004) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy X for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 247 South Central Texas -bacteria, dissolved oxygen Segment 1427, 1806A, 1803A, 1803B, 2107, 2104, 2113, 1906, 1913, 1908

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (2002) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2001) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and (2004) determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy X for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the X X X X X X BMP implementation based on follow-up verification monitoring of effectiveness.

248 TCEQ/TSSWCB joint publication SFR-68/04 Tarrant Regional Water District Watershed Plans

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and X encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory X of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and X X X X X X determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. X Recommend control strategies for implementation.

Develop A detailed action plan projected (TMDL, IP, or WPP) which completion establishes overall goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust X X X X X X the BMP implementation based on follow-up verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 249 Trinity River -bacteria Segments 0805

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the X participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load X allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP X X X X X X implementation based on follow-up verification monitoring of effectiveness.

250 TCEQ/TSSWCB joint publication SFR-68/04 Upper Oyster Creek -dissolved oxygen, bacteria Segment 1245

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage (2001) the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of (2002) point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze data, assess loadings, and X X determine the origin and distribution of pollutants.

Develop and apply model(s) to determine numerical load allocations. Recommend X X control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy X X for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP implementation based on follow-up X X X X verification monitoring of effectiveness.

TCEQ/TSSWCB joint publication SFR-68/04 251 Welsh Reservoir - selenium Segment 404D

Milestones completed 2005 2006 2007 2008 2009 2010

Employ or develop a Local Watershed Committee to solicit input and encourage the participation of affected stakeholders in the decision-making process.

Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

Complete water quality monitoring. Analyze advisory data, assess loadings, and determine the rescinded origin and distribution of pollutants. (2004)

Develop and apply model(s) to determine proposed numerical load allocations. Recommend delisting control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

Implement voluntary and regulatory actions in the watershed and adjust the BMP implementation based on follow-up X X X X X verification monitoring of effectiveness.

252 TCEQ/TSSWCB joint publication SFR-68/04 APPENDIX D AQUIFER VULNERABILITY RANKING SYSTEM DRASTIC: A Standardized System for Evaluating Groundwater Pollution Potential Using Hydrogeologic Settings (EPA/600/2-87/035 June 1987).

DRASTIC is an acronym composed of letters for each of the measurable parameters for which data are generally available from a variety of reference sources, including the Texas Water Development Board, Natural Resource Conservation Service, Bureau of Economic Geology, USGS and others. These parameters are called DRASTIC factors, and include:

D - Depth to water R - net Recharge A - Aquifer media S - Soil media T - Topography I - Impact of the vadose zone media C - hydraulic Conductivity of the aquifer

In the DRASTIC methodology, each of these factors has a "range" and associated "rating" - for example, Depth to water has the following ranges and ratings:

Range Rating

0-5 feet 10

5-15 feet 9

15-30 feet 7

30-50 feet 5

50-75 feet 3

75-100 feet 2

100+ feet 1 As is evident, the "rating" has a higher numeric value for a shallower depth to water.

Net Recharge has a "range" based on inches of infiltration.

Aquifer media has a "range" based on rock type, as is Impact of vadose zone material. Soil media is similarly based on soil type.

Topography's range is based on percent slope. The range for hydraulic Conductivity is based on gallons per day per square foot.

TCEQ/TSSWCB joint publication SFR-68/04 253 The "ratings" are then multiplied by an assigned "weight" for each of the factors - for Depth to water, the assigned "weight" is 5. For Topography, the assigned "weight" is 1. These "weights" are for a pollution potential from general, industrial, and municipal sources. The factors receive a different set of assigned "weights" for pollution potential from agricultural sources. Factor "weights" may also be based on the best professional judgement of a geo-scientist doing the analysis.

Factor "ratings", multiplied by their assigned "weights", are then added together to yield a DRASTIC index, a numerical indicator of an aquifer's relative susceptibility to impacts from surface activities in a given location. More information may be obtained from the publication referenced at the top of this section. Table D.1 Aquifer Vulnerability Ranking Major Aquifers Average Drastic Index Vulnerability Rank *

Seymour 144 High

Edwards (Balcones Fault Zone - 135 High San Antonio)

Edwards (Balcones Fault Zone - Austin) 126 High

Carrizo-Wilcox 117 Medium

Edwards-Trinity (Plateau) 107 Medium

Ogallala (South) 99 Medium

Gulf Coast 95 Medium

Trinity 95 Medium

Cenzoic Pecos Alluvium 95 Medium

Ogallala (North) 87 Low

Hueco-Mesilla Bolson 84 Low

Minor Aquifers Average Drastic Index Vulnerability Rank *

Brazos River Alluvium 144 High

Ellenberger-San Saba 126 High

Marble Falls 126 High

Hickory 114 Medium

Nacatoch 111 Medium

Blossom 109 Medium

Queen City 108 Medium

Lipan 108 Medium

Rustler 106 Medium

Blaine 102 Medium

254 TCEQ/TSSWCB joint publication SFR-68/04 Minor Aquifers Average Drastic Index Vulnerability Rank *

Bone Springs-Victorio Peak 100 Medium

Capitan Reef Complex 98 Medium

Sparta 98 Medium

Marathon 96 Medium

West Texas Bolsons 90 Low

Edwards-Trinity (High Plains) 83 Low

Rita Blanca 83 Low

Woodbine 82 Low

Igneous 79 Low

Dockum 78 Low

Yegua-Jackson Not Available Not Available

TCEQ/TSSWCB joint publication SFR-68/04 255 APPENDIX E THE HISTORY OF NONPOINT SOURCE MANAGEMENT The need to protect the environment from nonpoint source pollution has resulted in the creation of a number of pollution control laws, regulations, and programs over the past 30 years. The implementation of these programs takes place at all levels - federal, state, and local. This Appendix presents a historical overview of some of the major legislation and programs that have been implemented to address nonpoint source pollution.

Clean Water Act of 1972 The Clean Water Act (CWA) of 1972 forms the basis for water quality protection for surface water as well as groundwater. It was enacted as a series of amendments to the Federal Water Pollution Control Act of 1948. The 1972 Act was prompted by the worsening state of America's rivers and several high-profile oil spills. The stated objective of the Clean Water Act is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The Act instituted a national program for cleaning up the nation's waters and required state programs be put in place to achieve the water quality goals. The statute employed a variety of regulatory and nonregulatory tools to reduce pollutant discharges into waterways, finance municipal wastewater treatment, and manage polluted runoff.

Congress did not directly regulate nonpoint source pollution in the original 1972 Act. Instead, early efforts at nonpoint source management were relegated to state and local governments through general area-wide waste management planning conducted under §208 of the CWA. Under the 208 program, state governors designated local management authorities for areas with waste treatment problems. These local authorities, in turn, engaged in comprehensive area-wide waste treatment planning. The Plans were primarily devoted to treatment works, but were also to take account of various nonpoint sources of pollution, including agricultural, silvicultural, mine-related, and construction related sources. §208 provided cost share funds to those areas of States which had approved waste management plans.

In the late 1970's, initial Water Quality Management Plans for Texas were prepared by the Texas Department of Water Resources (now the TCEQ) under the provisions of §208. These plans contained an assessment of NPS pollution conditions in each of the classified waters in Texas. Based primarily on these assessments, some fifteen individual NPS-related studies were conducted over a period of three years.

During the development of these initial Plans, two executive orders were issued to delineate the responsibilities of the two principle agencies involved with nonpoint source controls in the State of Texas. In 1979, the Texas Department of Water Resources was designated the State agency responsible for coordinating §208 planning, while the Texas State Soil and Water Conservation Board (TSSWCB) was designated as the planning agency responsible for identifying management strategies for agricultural and silvicultural nonpoint sources of pollution. 256 TCEQ/TSSWCB joint publication SFR-68/04 National Urban Runoff Program For many years following the passage of the CWA, EPA and the states focused pollution control efforts mainly on regulating discharges from traditional "point source" facilities, such as municipal sewage plants and industrial facilities. These dischargers were considered the primary contributors to poor water quality conditions. However, as better point source control measures were developed, it became evident that more diffuse sources of water pollution were also contributing to water quality problems.

The National Urban Runoff Program (NURP) was developed by EPA in 1978 as a five-year program to obtain data on control of urban runoff quality and its impact on receiving waters. Between 1978 and 1983, NURP conducted studies that evaluated outfalls in 28 communities across the United States. These studies confirmed that contaminants contained in urban and suburban runoff, such as sediments, phosphorus, nitrates, coliform bacteria, as well as lead, and other heavy metals, impaired water quality in streams, lakes, wetlands, and estuaries. The data also showed that runoff from urban and industrial areas contained significant quantities of the same types of regulated pollutants that are found in wastewater and industrial discharges.

National Pollutant Discharge Elimination System To address the problem of stormwater runoff, Congress amended the Clean Water Act in 1987 to include urban stormwater discharges as a "point source," requiring the EPA to develop permit requirements for urban stormwater discharges even though the actual source of the pollution is from nonpoint sources. The National Pollutant Discharge Elimination System (NPDES) law was promulgated as a two-phase program. Phase One, implemented in 1990, addressed construction, industrial, and municipal discharges in cities with populations over 100,000. Phase Two for all municipalities under 100,000 became effective in 2003. The TCEQ assumed delegation of the Federal NPDES program (now known as TPDES) in September 1998.

Rural Clean Water Program In 1980, Congress established an experimental program to address agricultural nonpoint source pollution. The experiment was called the Rural Clean Water Program (RCWP). The RCWP combined land treatment and water quality monitoring to document the effectiveness of NPS pollution control measures.

Twenty-one experimental RCWP projects were selected throughout the country, representing a wide range of pollution problems and impaired water uses. Each of the projects involved the implementation of best management practices (BMPs) to reduce NPS pollution and water quality monitoring to evaluate the effects of the land treatment. BMP installation was targeted to land areas or sources of NPS pollutants identified as having significant impacts on the impaired or threatened water resource. Cost-share funds and technical assistance were offered to producers as incentives for

TCEQ/TSSWCB joint publication SFR-68/04 257 using or installing BMPs. The RCWP was administered by the U.S. Department of Agriculture in consultation with the U.S. Environmental Protection Agency.

The RCWP projects made significant contributions to the body of knowledge about NPS pollution, NPS pollution control technology, agricultural NPS pollution monitoring design and data interpretation, and the effectiveness of voluntary cost-share programs designed to assist producers in reducing agricultural NPS pollution. The RCWP program was phased out by 1990.

The 1987 Clean Water Act Amendment: Nonpoint Source Management

In 1987 Congress amended the 1972 Clean Water Act by adding §319. This amendment was the first concerted effort by the federal government to address pollution from nonpoint sources. §319 established a national policy requiring states to develop and implement programs for the control of nonpoint source pollution. The new §319 created a two step process for nonpoint source management. States first had to submit to EPA a report that identifies waters within the state that, without additional action to control nonpoint sources of water pollution, cannot reasonably be expected to attain or maintain applicable water quality standards or the goals and requirements of the Clean Water Act. States then had to submit a nonpoint source management program to the EPA for approval. In addition, §319 provided for continuing federal monitoring of state nonpoint source progress through annual reports to EPA, and EPA's annual reports to Congress.

Initially, the Texas Water Commission (predecessor to TCEQ) was given the authority to administer the §319 Nonpoint Source program for the State of Texas, and used its authority to provide federal funds to a small number of planning agencies and river authorities across the state. In response to the 1987 Amendment, the Commission completed its initial NPS Pollution Assessment Report and Management program in 1989, and prepared the first program update in 1991.

As part of the public participation process, the Texas Water Commission convened a 27 member panel representing industry, agriculture, environmental groups, and government from diverse areas of the state to recommend a program to reduce nonpoint source pollution in Texas. The group's initial meeting was held on March 30, 1989. The committee established three specialized subcommittees–Education, Monitoring & Database, and Best Management Practices –reflecting the major emphases and worked 16 months to produce a set of fourteen recommendations. The recommendations ranged from development of a BMP technical manual to enforcement activities and public education. The Funding Subcommittee recommended funding requirements of $3.6 million to implement the program and recommended the Commission seek to implement the entire recommendation package. Specific methods for funding were not identified in order to allow the Commissioners flexibility in identifying funding sources. All fourteen recommendations were adopted by the TWC.

In 1993, the Texas Legislature authorized the Texas State Soil and Water Conservation Board to implement voluntary programs to assist agricultural and silivicultural

258 TCEQ/TSSWCB joint publication SFR-68/04 producers to meet the state's water quality goals and standards. As a result of TSSWCB's new authority, the EPA began to award half of the annual Texas §319(h) grant allotment directly to the TSSWCB, with the other half awarded to the Texas Natural Resource Conservation Commission (renamed the Texas Commission on Environmental Quality in 2002.) The TSSWCB and TCEQ coordinate the §319 program for the State of Texas according to the terms of a Memorandum of Agreement executed in 1993 between the two agencies.

In 1996, the State of Texas initiated preparation of the second update to the State's Nonpoint Source Management Program which was approved by EPA in February 2000. The document was a collaborative effort between the TCEQ and the TSSWCB and was designed to complement the TMDL process underway in Texas.

Recent grant guidelines under §319 reflect the growing recognition that strategies built on specific watershed conditions are more effective at controlling nonpoint source than approaches based on jurisdictional roles of municipalities, counties, and states. Under the watershed approach, equal emphasis is placed on protecting healthy waters and restoring impaired ones. Involvement of stakeholder groups in the development and implementation of strategies for achieving and maintaining water quality goals will become an integral part of future nonpoint source management under the §319 PROGRAM.

CLEAN WATER ACTION PLAN A major enhancement to the §319 grant program came about in 1998 through the EPA's and USDA's Clean Water Action Plan (CWAP). In his 1998 State of the Union Address, President Bill Clinton announced a new Clean Water Initiative to speed the restoration of the nation's waterways. This new initiative aimed to achieve clean water by strengthening public health protections, targeting community-based watershed protection efforts at high priority areas, and providing communities with new resources to control polluted runoff.

The CWAP emphasized four tools in achieving water quality: (1) a watershed approach to water pollution; (2) stronger federal and state water quality standards; (3) better natural resource stewardship for cropland, pasture, rangeland, and forests; and (4) better information for citizens and government officials. All of these tools affect nonpoint source pollution control and incorporate federal and state or local measures. In conjunction with the plan, the CWAP initiative was budgeted additional funds by Congress for water pollution control. §319 nonpoint source control programs received $200 million of additional funding, known as incremental funding, and NOAA received a new allocation to control polluted runoff and toxic contaminants. Since award of the first incremental funds in 1999, Congress has budgeted both base and incremental grant funding to EPA and the States for control of nonpoint source pollution.

TCEQ/TSSWCB joint publication SFR-68/04 259 Total Maximum Daily Load Program The 1972 Clean Water Act did provide another mechanism for addressing nonpoint source pollution through §303. This Section required states to set ambient water quality standards for all water bodies within the state and identify the beneficial uses of each water body. In 1985 and 1992, EPA issued rules for implementing §303(d) under which States were required to identify those waters not meeting water quality standards; prioritize those waters; and set Total Maximum Daily Loads, or TMDLs, of pollutants for each such waterbody in order of priority. The TMDL process was designed to address load allocations for nonpoint sources as well as point sources. In addition, the rule required States TMDLs to restore those impaired waters but did not provide for actual implementation of the TMDLs.

In the 1970's and 1980's, EPA and the States focused on bringing point sources of pollution into compliance with NPDES requirements. Setting TMDLs for both point and nonpoint source pollution was viewed as an expensive and complicated process. The lack of widespread TMDL development was perceived by many groups around the country as a source of contention. As a result, a string of court cases filed in the early to mid-1990's, under the citizen suit provision of the CWA, forced EPA and the states to stop avoiding TMDL implementation.

Although the State of Texas was not involved in litigation, the TCEQ committed itself in 1998 to developing TMDLs for all impaired waterbodies within 10 years of their first placement on the state's 303(d) list. The 76th (1999) and 77th (2001) Texas Legislatures appropriated funds to the TCEQ and the TSSWCB to support the development of TMDLs. Texas has already completed a number of TMDLs for nonpoint source affected waterbodies and submitted them to the EPA. Currently, the TCEQ and TSSWCB operate under the 1992 EPA TMDL guidelines. Control of nonpoint sources remains voluntary through the implementation of best management practices.

National Estuary Program In response to pollution in coastal waters, Congress established the National Estuary Program (NEP) under §320 of the Clean Water Act of 1987. The mission of the NEP is to protect and restore the health of estuaries while supporting economic and recreational activities. Under the Act, the administrator of the EPA was given authorization to convene management conferences to develop Comprehensive Conservation and Management Plans (CCMPs) for estuaries of national significance that are threatened by pollution, development, or overuse. Two Texas estuaries were named Estuaries of National Significance under §320 and were accepted into the National Estuary Program: Galveston Bay in July 1988, and Corpus Christi Bay in October 1992.

Both Texas estuaries have been impacted by nonpoint source pollution. The Coastal Bend Bays & Estuaries Program (CBBEP), established in 1994, submitted a CCMP in 1998. Contaminated stormwater flowing into the bay has been identified as a primary water quality concern. With funds from federal, state, and local governments, private

260 TCEQ/TSSWCB joint publication SFR-68/04 industry and foundation grants, the CBBEP has provided funding for nonpoint source control projects in the coastal bend region. The Galveston Bay Estuary Program (GBEP), established in 1989, drafted and adopted a CCMP in April 1995 to improve water quality and enhance living resources in Galveston Bay. Water and sediments in tributaries and near-shore areas of Galveston Bay have been degraded by contaminated runoff from nonpoint sources, primarily from urbanized areas. During the 1995 Texas legislative session, funds were approved for the GBEP to proceed with Plan implementation.

In 1999, the Texas Legislature passed the Texas Estuaries Act (HB 2561), which recognized the economic and environmental value of publicly held resources in Texas estuaries. The Act identified the TCEQ as the lead management agency and directs other state agencies to work together.

Other Federal Programs The Clean Water Act, which recently celebrated its 30th anniversary, has been credited with significant water quality improvements to surface water. Under the CWA, municipal and industrial wastewater facilities have been built or upgraded and industrial point source discharges have been regulated and controlled. Despite this progress, many waterbodies remain impaired from nonpoint sources. Congress has not significantly amended the Clean Water Act's nonpoint source provisions since 1987, however, the CWA is not the only vehicle through which Congress has extended federal control over nonpoint source pollution.

Coastal Zone Nonpoint Source Management In 1972 Congress passed the Federal Coastal Zone Management Act (CZMA) in response to reports on coastal pollution and erosion. With this Act, the federal government established a program to encourage coastal states and territories to develop land-use plans that would protect coastal resources, including wetlands, dunes, and barrier islands. The CZMA provided funding to states to develop programs to define and regulate permissible land and water uses within this zone.

The Coastal Zone Management Reauthorization Amendments of 1990 (CZARA) created the Coastal Nonpoint Source Program under §6217. As a prerequisite for receiving continued CZMA funding, CZARA required the 29 coastal states, with federally approved coastal zone management plans, to develop and submit coastal nonpoint source pollution control programs for approval by the National Oceanic and Atmospheric Administration (NOAA) and the Environmental Protection Agency (EPA). States were required to issue management measures for certain categories of runoff and erosion, and to evaluate nonpoint sources and identify coastal areas that would be negatively affected by specified land uses. In 1991, EPA proposed guidance on management measures for five major categories of nonpoint sources. In 1992, EPA provided updated guidance for an agricultural management measure for erosion and sediment control and confined animal facility management, and a management measure for urban runoff in developing areas. The Coastal Nonpoint Source Program also

TCEQ/TSSWCB joint publication SFR-68/04 261 established shared responsibility for managing coastal waters between state Coastal Zone Management programs and state agencies responsible for overseeing implementation of §319 programs.

In 1991, the Texas Legislature directed the General Land Office to head up a Coastal Coordination Council, which developed a Coastal Zone Management Plan in response to the requirements of the CZARA. The Plan, which became effective in 1995, sets policies, standards and regulations affecting private and public property in all counties contiguous to the Texas coastline. Activities such as development permits, fill-and-dredge operations, siting of oil and gas waste-disposal pits, agricultural activities, and highway construction are addressed in the plan. The Texas Coastal Management Program was approved by the National Oceanic and Atmospheric Administration (NOAA) on January 10, 1997.

As a requirement for federal approval of its coastal management program, Texas was required to develop and implement a program to specifically address coastal nonpoint source pollution. The purpose of the Coastal NPS Program is to identify sources of coastal NPS pollution and develop recommendations for its prevention.

The Coastal NPS Program for Texas has been under development since 1997. To facilitate the development of the NPS Program, the Coastal Coordination Council established a work group comprised of staff from the General Land Office, Texas Commission on Environmental Quality, Texas Railroad Commission, Texas Department of Transportation, Texas Parks and Wildlife Department, Texas State Soil and Water Conservation Board, and a public member from the Council. This work group has addressed comments submitted by the National Oceanic and Atmospheric Administration (NOAA) and the Environmental Protection Agency (EPA) regarding Texas' Coastal NPS Program, reviewed and recommended proposed NPS pollution control projects, and researched possible options to enhance the program.

In December 1998, Texas submitted its Coastal NPS Program to NOAA and EPA. After two and a half years of discussion between Texas and the federal agencies, NOAA and EPA published in the Federal Register, in late September 2001, their intent to approve the Texas Coastal NPS Program with certain conditions. NOAA and EPA identified six areas (encompassing 18 of the 52 required management measures) that Texas must strengthen or correct prior to receiving full approval of the Coastal NPS Program. These areas are:

# development and site development # watershed protection and existing development # construction site chemical control # new and operating onsite disposal systems # roads, highways, and bridges; and # hydromodification On December 24, 2002, NOAA and EPA emailed a memo concerning policy clarification on the overlap of §6217 Coastal NPS Programs with Phase I and Phase II

262 TCEQ/TSSWCB joint publication SFR-68/04 Storm Water Regulations. This memo clarifies which activities are no longer subject to the requirements of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA) Coastal NPS Control Program.

The second notice to conditionally approve Texas' Coastal NPS Program was posted in the Federal Register on April 7, 2003. The Final Conditional Approval Letter was received on July 9, 2003. Texas was given five years to meet the remaining conditions. The Coastal NPS Program coordinates with other programs, such as the Galveston Bay Estuary Program and the Coastal Bend Bays and Estuaries Program, to ensure wide participation and input into the Coastal NPS Program.

Safe Drinking Water Act: Source Water Protection The Safe Drinking Water Act (SDWA), promulgated by Congress in 1974, established a Federal program to monitor and increase the safety of the nation's drinking water supply. The SDWA authorized the EPA to set and implement health-based standards to protect against both naturally occurring and man-made contaminants in drinking water. The 1986 Amendment to the SDWA included a provision for States to establish wellhead protection (WHP) areas to protect groundwater from all sources of contamination including nonpoint sources. Texas was the first state in the nation to implement a wellhead protection project, having adopted a voluntary approach. The 1996 Amendment to the SDWA expanded the WHP program to strengthen protection for all sources of drinking water including surface water.

Intermodal Surface Transportation Efficiency Act Another major piece of legislation passed in 1991 was the Intermodal Surface Transportation Efficiency Act (ISTEA) designed to expand and improve the quality and condition of the nation's highway and transportation system. This Act contained provision for the planning and developing of highway systems and a host of transportation enhancement activities including the mitigation of water pollution due to highway runoff. ISTEA established a block grant program in which States could use a portion of their federal highway funding allotment for runoff pollution control devices and other best management practices to reduce the amount of polluted runoff that reaches lakes and rivers. ISTEA also required that Departments of Transportation develop national erosion control guidelines for states to follow when carrying out federal-aid construction projects. Federal Highway Administration guidelines for erosion and sediment control in coastal areas must be consistent with both CZARA Guidance and the state 319 program.

The Food Security Act of 1985 Since 1985, farm bills have recognized the environmental problems caused by or associated with agricultural nonpoint source pollution. Congress passed the federal Food Security Act in 1985 to help prevent erosion of cropland and, incidentally, to control sediment runoff from farms. Conservation compliance provisions of the act required farmers who farm highly erodible land to have a conservation plan developed by 1990 and installed by 1995 to be eligible to participate in federal farm programs.

TCEQ/TSSWCB joint publication SFR-68/04 263 The Act also established the Conservation Reserve Program (CRP) to provide financial incentives to farmers who take highly erodible cropland and other environmentally fragile land out of production.

Federal Agriculture Improvement and Reform Act of 1996 In 1996 Congress reauthorized the Farm Bill (the Federal Agriculture Improvement and Reform Act) which refunded and restructured the Conservation Reserve Program and made changes to the program including the addition of environmental criteria in recognition that agriculture is a major cause of nonpoint source pollution. The programs of the Farm Bill are administered by the USDA - Natural Resource Conservation Service (NRCS).

The 1996 Bill also created the Environment Quality Incentives Program (EQIP) which offered financial, educational, and technical assistance to encourage persons involved in agricultural or livestock production to adopt conservation practices to protect water quality.

Farm Security and Rural Investment Act of 2002 The Farm Security and Rural Investment Act of 2002, authorized or reauthorized a number of conservation programs, including the Resource Conservation and Development Program. The legislation simplified existing programs and created new ones to address high-priority environmental and production goals. The new Farm Bill authorized an 80 percent increase in funding above levels previously available for USDA programs designed to protect and conserve natural resources. The 2002 Farm Bill also enhanced coordination between the EPA and the USDA by integrating funding and resources to minimize potential duplication of effort.

State of Texas Nonpoint Source Control Programs In addition to the CWA §319 grant program and other federally funded programs, the State of Texas has managed nonpoint source water pollution through a combination of programs and regulations at the regional and local level.

General Discharge Prohibition The Texas Water Code provides that, except as authorized, no person may "discharge sewage, municipal waste, recreational waste, agricultural waste, or industrial waste into or adjacent to any water in the state," discharge other waste which in itself or in conjunction with any other discharge or activity causes pollution of any water of the state, or commit any other act which causes pollution of any water of the state. Exempted from this prohibition are: discharges authorized by permit, discharges in compliance with a certified water quality management plan as provided under the state agriculture code, and activities under the jurisdiction of the Parks and Wildlife Department, the General Land Office or the Railroad Commission of Texas. The TCEQ enforces these provisions.

264 TCEQ/TSSWCB joint publication SFR-68/04 Texas Local Government Code Texas law also puts authority to regulate land uses at the regional, county, and municipal level. Texas' local government code includes provisions allowing a home-rule municipality to prohibit the pollution of streams, drains, and tributaries that "may constitute the source of the water supply of any municipality." The law more broadly states that a home-rule municipality may provide protection for and police any watershed. A municipality may exercise other provisions inside or outside the municipality's boundaries.

Municipal Pollution Abatement Plans The TCEQ's regulatory approach to urban nonpoint source management is found in the Texas Water Code, §26.177, which defines the water pollution control duties of cities in Texas. The statute was originally passed by the legislature in 1967 and was amended in 1971, 1977, 1987 and 1997. Under this section, cities having a population of 10,000 or more inhabitants are required to establish a water pollution control and abatement plan when the Clean Rivers Basin assessments or other TCEQ assessments identify water pollution impacts arising within the respective city and not associated with permitted point sources. These plans are to be submitted to the TCEQ for review and approval to address pollution attributable to non-permitted sources, to implement measures to control and abate water pollution within the city's jurisdiction. The statute allows for TCEQ to establish criteria for water pollution control and abatement programs and allows the agency to assess fees to cover the costs to administer the program. The following requirements are specified for water pollution control and abatement: 1) Inventory, monitor, and obtain compliance for waste discharges; and 2) provide for "reasonable and realistic planning plans for controlling..." nonpoint source pollution. Rules implementing §26.177 of the Texas Water Code were developed in 1998 and were adopted by the TCEQ in 1999.

Livestock and Poultry Production Operations In 1987, the Texas Water Commission (now the TCEQ) adopted rules regulating animal feeding operations (AFOs) that can contribute to nonpoint source pollution. AFOs over a certain size, known as concentrated animal feeding operations (CAFOs), are required to obtain a NPDES permit. State regulations prohibit these facilities from discharging wastewater or animal waste directly into streams and rivers or allowing the waste to run off the site, where it could contaminate surface water or groundwater. The permit requires the operator to develop a pollution prevention plan that addresses water and air pollution as well as the land application of wastes and wastewater.

Recent rule changes for CAFOs have established stricter permit requirements in certain watersheds where water quality problems have been attributed to livestock operations. The TCEQ adopted rules on March 6, 2002, to implement the requirements of House Bill 2912, of the 77th Texas Legislature regarding permitting requirements for CAFOs located in major sole-source impairment zones and the protection of sole-source drinking water supplies. The EPA adopted changes to the federal CAFO regulations

TCEQ/TSSWCB joint publication SFR-68/04 265 and effluent guidelines that became effective on April 13, 2003, changing the requirements to operate CAFOs under the Clean Water Act. Specifically, the new federal regulations changed which animal feeding operations were defined as CAFOs and what management practices are required for those operations. The effluent guidelines changed the design standards for new source swine, veal, and poultry operations and added a requirement for nutrient management plans (NMPs). These new changes meant that under the state's NPDES MOA with EPA, all state CAFO rules must also meet federal requirements. On February 25, 2004, the TCEQ approved rules that incorporate changes necessary to support the recommendations of the Implementation Plan for the Total Maximum Daily Load evaluations for Segments 1226 and 1255 of the Bosque River.

Edwards Aquifer Protection Program Development activities in various portions of the Edwards Aquifer have been regulated since 1970 when the Texas Water Quality Board (a predecessor agency to the TCEQ) issued an order designed to protect the quality of water entering the Edwards Aquifer recharge zone. Sources of pollution such as underground storage tanks, above ground storage tanks, and sewer lines were regulated. The first Texas counties affected were Kinney, Uvalde, Medina, Bexar, Comal, and Hays. Upon petition by local government, construction activities in portions of Williamson County became regulated in 1986. In 1990, construction activities in portions of Travis county were also regulated.

The TCEQ's Edwards Aquifer Protection Program rules regulate certain activities having the potential to adversely affect the water quality of the Edwards Aquifer and hydrologically-connected surface water in order to protect existing and potential beneficial uses of groundwater. The rules require that developers obtain a letter of approval before beginning construction activity and require that developers implement both temporary and permanent best management practices during and after construction.

In 1999, Edwards rules were extended to cover the contributing zone to the recharge area. Other changes included a design performance standard for permanent best management practices. The standard applies to water quality systems used for stormwater treatment. Examples include sand filtration basins, extended detention basins, and retention ponds with irrigation systems. The rules also require engineers to certify the construction of the systems. There is also a mechanism in the rules to ensure maintenance of these systems. Regulated activities are those that have the potential for polluting surface streams that will cross the recharge zone. This includes large construction projects and installation of petroleum storage tanks.

On-Site Sewage Facilities Prior to the late 1960's, the regulation of on-site sewage facilities (OSSF) in Texas was administered primarily by municipal governments through local building inspection and plumbing inspection programs. There was no inspection of installation outside of municipal jurisdiction. In the late 1960's, the Texas Legislature adopted legislation

266 TCEQ/TSSWCB joint publication SFR-68/04 which empowered other local governmental entities (e.g., counties, river authorities, Municipal Utility Districts, etc.) to adopt OSSF control orders subject to approval by the Texas Water Quality Board (now TCEQ). These approved orders gave local governments authority to permit systems, conduct inspections, collect fees, and investigate complaints.

Soil Conservation Laws and Programs Early attempts at soil conservation legislation in Texas began during the "Dust Bowl" days of the 1930's when the problems of wind and water erosion began to get public attention. Legislation authorizing the establishment of Wind Erosion Conservation Districts was enacted by the 44th legislature in 1935. This law provided for the creation of districts to conserve the soil by prevention of unnecessary erosion caused by winds, and reclamation of lands that were depreciated or denuded of soil by wind. The TSSWCB, created in 1939, was charged with the responsibility of organizing soil conservation districts throughout the state. In 1941, the 47th Legislature passed House Bill 444 which is the basic conservation law under which the Texas State Soil and Water Conservation Board and the Soil and Water Conservation Districts operate today.

The TSSWCB is charged with the responsibility of administering and coordinating the state's soil and water conservation laws and programs with the State's 217 soil and water conservation districts. Through various educational and financial programs, the districts provide assistance to farmers and ranchers to encourage the wise and productive use of the state's soil and water resources. After passage of the 1972 Clean Water Act, the soil and water conservation district directors in Texas asked the TSSWCB to seek an appropriate role for them in nonpoint source planning and management. This request led to the passage of Senate Bill 229 passed during the 69th Texas Legislature. This legislation added §201.026 to the Texas Agricultural Code to give the TSSWCB responsibility to plan implement and manage programs and practices for abating agricultural and silvicultural nonpoint source pollution.

Water Quality Management Plans In 1993, the Texas Legislature took another major step toward controlling water pollution from agricultural and silvicultural nonpoint sources when it passed Senate Bill 503. SB 503 authorized the TSSWCB to assist agricultural and silvicultural producers in meeting the state's water quality goals and standards through a voluntary, incentive-based program. The Bill transferred much of the responsibility for regulating non-permitted, smaller animal feeding operations from the TCEQ to the TSSWCB. The move was designed to change the state's oversight of these operations from a traditional regulatory role to a technical assistance role.

SB503 provided for the development and certification of water quality management plans (WQMPs). These plans are site specific plans for agricultural or silvicultural lands which include appropriate land treatment practices, production practices, management measures, technologies, or combinations thereof. A water quality

TCEQ/TSSWCB joint publication SFR-68/04 267 management plan is a site-specific document indicating when, where, and how to implement conservation practices following standards in the USDA Natural Resource Conservation Service Field Office Technical Guide. These plans are tailored to each landowner's conservation needs and management goals while ensuring adherence to state water quality laws.

SB 503 legislation also set up a complaint resolution process and provided for a cost share assistance to help pay for some of the costs of installing water quality management practices. The provisions of the legislation are administered by the TSSWCB through and in cooperation with local soil and water conservation districts. The passage of Senate Bill 1339 during the 77th Session of the Texas Legislature expanded the water quality management program to include poultry facilities.

Although authorized by SB 503, the TSSWCB has yet to develop a certified water quality management program for silvicultural activities.

268 TCEQ/TSSWCB joint publication SFR-68/04 APPENDIX F CLEAN WATER ACT, §319 [§319 added by PL 100-4]

(a) State Assessment Reports. --

(1) Contents. -- The Governor of each State shall, after notice and opportunity for public comment, prepare and submit to the Administrator for approval, a report which:

(A) identifies those navigable waters within the State which, without additional action to control nonpoint sources of pollution, cannot reasonably be expected to attain or maintain applicable water quality standards or the goals and requirements of this Act;

(B) identifies those categories and subcategories of nonpoint source or, where appropriate, particular nonpoint sources which add significant pollution to each portion of the navigable waters identified under subparagraph (A) in amounts which contribute to such portion not meeting such water quality standards or such goals and requirements;

(C) describes the process, including intergovernmental coordination and public participation, for identifying best management practices and measures to control each category and subcategory of nonpoint sources and, where appropriate, particular nonpoint sources identified under subparagraph (B) and to reduce, to the maximum extent practicable, the level of pollution resulting from such category, subcategory, or source; and

(D) identifies and describes State and local programs for controlling pollution added from nonpoint sources to, and improving the quality of, each such portion of the navigable waters, including but not limited to those programs which are receiving Federal assistance under subsections (h) and (I).

(2) Information Used in Preparation. -- In developing the report required by this section, the State (A) may rely upon information developed pursuant to 208, §303(e), §304(F),§305(B), AND §314, and other information as appropriate, and (B) may utilize appropriate elements of the waste treatment management plans developed pursuant to §208(b) AND §303, to the extent such elements are consistent with and fulfill the requirements of this section.

(b) State Management Programs. --

(1) In General. -- The Governor of each State, for that State or in combination with adjacent States, shall, after notice and opportunity for public comment,

TCEQ/TSSWCB joint publication SFR-68/04 269 prepare and submit to the Administrator for approval a management program which such State proposes to implement in the first four fiscal years beginning after the date of submission of such management program for controlling pollution added from nonpoint sources to the navigable waters within the State and improving the quality of such waters.

(2) Specific Contents. -- Each management program proposed for implementation under this subsection shall include each of the following:

(A) An identification of the best management practices and measures which will be undertaken to reduce pollutant loadings resulting from each category, subcategory, or particular nonpoint source designated under paragraph (1)(B), taking into account the impact of the practice on ground water quality.

(B) An identification of programs (including, as appropriate, nonregulatory or regulatory programs for enforcement, technical assistance, financial assistance, education, training, technology transfer, and demonstration projects) to achieve implementation of the best management practices by the categories, subcategories, and particular nonpoint source designated under subparagraph (A).

(C) A schedule containing annual milestones for (I) utilization of the program implementation methods identified in subparagraph (B), and (ii) implementation of the best management practices identified in subparagraph (A) by the categories, subcategories, or particular nonpoint sources designated under paragraph (1)(B). Such schedule shall provide for utilization of the best management practices at the earliest practicable date.

(D) A certification of the attorney general of the State or States (or the chief attorney of any State water pollution control agency which has independent legal counsel) that the laws of the State or States, as the case may be, provide adequate authority to implement such management program or, if there is not such adequate authority, a list of such additional authorities as will be necessary to implement such management program. A schedule and commitment by the State or States to seek such additional authorities as expeditiously as practicable.

(E) Sources of Federal and other assistance and funding (other than assistance provided under subsections (h) and (I)) which will be available in each of such fiscal years for supporting implementation of such practices and measures and the purposes for which such assistance will be used in each of such fiscal years.

(F) An identification of Federal financial assistance programs and Federal development projects for which the State will review individual assistance applications or development projects for their effect on water quality

270 TCEQ/TSSWCB joint publication SFR-68/04 pursuant to the procedures set forth in Executive Order 12372 as in effect on September 17, 1983, to determine whether such assistance applications or development projects would be consistent with the program prepared under this subsection; for the purposes of this subparagraph, identification shall not be limited to the assistance programs or development projects subject to Executive Order 12372 but may include any programs listed in the most recent Catalog of Federal Domestic Assistance which may have an effect on the purposes and objectives of the State's nonpoint source pollution management program.

(3) Utilization of Local and Private Experts. -- In development developing and implementing a management program under this subsection, a State shall, to the maximum extent practicable, involve local public and private agencies and organizations which have expertise in control of nonpoint sources of pollution.

(4) Development on Watershed Basis. -- A State shall, to the maximum extent practicable, develop and implement a management program under this subsection on a watershed-by-watershed basis within such State.

(c) Administrative Provisions. --

(1) Cooperation Requirement. -- Any report required by subsection (a) and any management program and report required by subsection (b) shall be developed in cooperation with local, substate regional, and interstate entities which are actively planning for the implementation of nonpoint source pollution controls and have either been certified by the Administrator in accordance with §208, have worked jointly with the State on water quality management planning under §205(j), or have been designated by the State legislative body or Governor as water quality management planning agencies for their geographic areas.

(2) Time Period for Submission of Reports and Management Programs. -- Each report and management program shall be submitted to the Administrator during the 18-month period beginning on the date of the enactment of this section.

(d) Approval or Disapproval of Reports and Management Programs. --

(1) Deadline. -- Subject to paragraph (2), not later than 180 days after the date of submission to the Administrator of any report or management program under this section (other than subsections (h), (I), and (k)), the Administrator shall either approve or disapprove such report or management program, as the case may be. The Administrator may approve a portion of a management program under this subsection. If the Administrator does not disapprove a report, management program, or portion of a management program in such 180-day period, such report, management program, or portion shall be deemed approved for purposes of this section.

TCEQ/TSSWCB joint publication SFR-68/04 271 (2) Procedure for Disapproval. -- If, after notice and opportunity for public comment and consultation with appropriate Federal and State agencies and other interested persons, the Administrator determines that –

(A) the proposed management program or any portion thereof does not meet the requirements of subsection (b)(2) of this section or is not likely to satisfy, in whole or in part, the goals and requirements of the Act;

(B) adequate authority does not exist, or adequate resources are not available, to implement such program or portion;

(C) the schedule for implementing such program or portion is not sufficiently expeditious; or

(D) the practices and measures proposed in such program or portion are not adequate to reduce the level of pollution in navigable waters in the State resulting from nonpoint sources and to improve the quality of navigable waters in the State; the Administrator shall within 6 months of receipt of the proposed program notify the State of any revisions or modifications necessary to obtain approval. The State shall thereupon have an additional 3 months to submit its revised management program and the Administrator shall approve or disapprove such revised program within three months of receipt.

(3) Failure of State to Submit Report. -- If a Governor of State does not submit the report required by subsection (a) within the period specified by subsection (c)(2), the Administrator shall, within 30 months after the date of the enactment of this section, prepare a report for such State which makes the identifications required by paragraphs (1)(A) and (1)(B) of subsection (a). Upon completion of the requirement of the preceding sentence and after notice and opportunity for comment, the Administrator shall report to Congress on his actions pursuant to this section.

(e) Local Management Programs; Technical Assistance. -- If a State fails to submit a management program under subsection (b) or the Administrator does not approve such a management program, a local public agency or organization which has expertise in, and authority to, control water pollution, resulting from nonpoint sources in any area of such State which the Administrator determines is of sufficient geographic size may, with approval of such State, request the Administrator to provide, and the Administrator shall provide, technical assistance to such agency or organization in developing for such area a management program which is described in subsection (b) and can be approved pursuant to subsection (d). After development of such management program, such agency or organization shall submit such management program to the Administrator for approval. If the Administrator approves such management program, such agency or organization shall be eligible to receive financial assistance under subsection (h) for implementation of such management program as if such agency or organization were a State for which a report submitted

272 TCEQ/TSSWCB joint publication SFR-68/04 under subsection (a) and a management program submitted under subsection (b) were approved under this section. Such financial assistance shall be subject to the same terms and conditions as assistance provided to a State under subsection (h).

(f) Technical Assistance for States. -- Upon request of a State, the Administrator may provide technical assistance to such State in developing a management program approved under subsection (b) for those portions of the navigable waters requested by such State.

(g) Interstate Management Conference. --

(1) Convening of Conference; Notification; Purpose. -- If any portion of the navigable waters in any State which is implementing a management program approved under this section is not meeting applicable water quality standards or the goals and requirements of the Act as a result, in whole or in part, of pollution from nonpoint sources in another State, such State may petition the Administrator to convene, and the Administrator shall convene, a management conference of all States which contribute significant pollution resulting from nonpoint sources to such portion. If, on the basis of information available, the Administrator determines that a State is not meeting applicable water quality standards or the goals and requirements of this Act as a result, in whole or in part, of significant pollution from nonpoint sources in another State, the administrator shall notify such State. The Administrator may convene a management conference under this paragraph not later than 180 days after giving such notification, whether or not the State which is not meeting such standards requests such conference. The purpose of such conference shall be to develop an agreement among such States to reduce the level of pollution in such portion resulting from nonpoint sources and to improve the water quality of such portion. Nothing in such agreement shall supersede or abrogate rights to quantities of water which have been established by interstate water compacts, Supreme Court decrees, or State water laws. This subsection shall not apply to any pollution which is subject to the Colorado River Basin Salinity control Act. The requirement that the Administrator convene a management conference shall not be subject to the provisions of §505 of this Act.

(2) State Management Program Requirement. -- To the extent that the States reach agreement through such conference, the management programs of the States which are parties to such agreements and which contribute significant pollution to the navigable water or portions thereof not meeting applicable water quality standards or goals and requirements of the Act will be revised to reflect such agreement. Such a management program shall be consistent with Federal and State law.

(h) Grant Program. --

(1) Grants for Implementation of Management Programs. -- Upon application of a State for which a report submitted under subsection (a) and a management

TCEQ/TSSWCB joint publication SFR-68/04 273 program submitted under subsection (b) is approved under this section, the Administrator shall make grants, subject to such terms and conditions as the Administrator considers appropriate, under this subsection to such State for the purpose of assisting the State in implementing such management program. Funds reserved pursuant to §205(j)(5) of this Act may be used to develop and implement such management program.

(2) Applications. -- An application for a grant under this subsection in any fiscal year shall be in such form and shall contain such other information as the Administrator may require, including an identification and description of the best management practices and measures which the State proposes to assist, encourage, or require in such year with the Federal assistance to be provided under the grant.

(3) Federal Share. -- The Federal share of the cost of each management program implemented with Federal assistance under this subsection in any fiscal year shall not exceed 60 percent of the cost incurred by the State in implementing such management program and shall be made on condition that the non-Federal share is provided from non-Federal sources.

(4) Limitation on Grant Amounts. -- Notwithstanding any other provision of this subsection, not more than 15 percent of the amount appropriated to carry out this subsection may be used to make grants to any one State, including any grants to any local public agency or organization with authority to control pollution from nonpoint sources in any area of such State.

(5) Priority for Effective Mechanisms. -- For each fiscal year beginning after September 30, 1987, the Administrator may give priority in making grants under this subsection, and shall give consideration in determining the Federal share of any such grant, to States which have implemented or are proposing to implement management programs which will --

(A) control particularly difficult or serious nonpoint source pollution problems, including, but not limited to, problems resulting from mining activities;

(B) implement innovative methods or practices for controlling nonpoint sources of pollution, including regulatory programs where the Administrator deems appropriate;

(C) control interstate nonpoint source pollution problems; or

(D) carry out ground water quality protection activities which the Administrator determines are part of a comprehensive nonpoint source pollution control program, including research, planning, ground water assessments, demonstration programs, enforcement, technical assistance, education, and training to protect ground water quality from nonpoint sources of pollution.

274 TCEQ/TSSWCB joint publication SFR-68/04 (6) Availability for Obligation. -- The funds granted to each State pursuant to this subsection in a fiscal year shall remain available for obligation by such State for the fiscal year for which appropriated. The amount of any such funds not obligated by the end of such fiscal year shall be available to the Administrator for granting to other States under this subsection in the next fiscal year.

(7) Limitation on Use of Funds. -- States may use funds from grants made pursuant to this section for financial assistance to persons only to the extent that such assistance is related to the costs of demonstration projects.

(8) Satisfactory Progress. -- No grant may be made under this subsection in any fiscal year to a State which in the preceding fiscal year received a grant under this subsection unless the Administrator determines that such State made satisfactory progress in such preceding fiscal year in meeting the schedule specified by such State under subsection (b)(2).

(9) Maintenance of Effort. -- No grant may be made to a State under this subsection in any fiscal year unless such State enters into such agreements with the Administrator as the Administrator may require to ensure that such State will maintain its aggregate expenditures from all other sources for programs for controlling pollution added to the navigable waters in such State from nonpoint sources and improving the quality of such waters at or above the average level of such expenditures in its two fiscal years preceding the date of enactment of this subsection.

(10) Request for Information. -- The Administrator may request such information, data, and reports as he considers necessary to make the determination of continuing eligibility for grants under this section.

(11) Reporting and Other Requirements. -- Each State shall report to the Administrator on an annual basis concerning (a) its progress in meeting the schedule of milestones submitted pursuant to subsection (b)(2)(c) of this section, and (B) to the extent that appropriate information is available, reductions in nonpoint source pollutant loading and improvements in water quality for those navigable waters or watersheds within the State which were identified pursuant to subsection (a)(1)(a) of this section resulting from implementation of the management program.

(12) Limitation on Administrative Costs. -- For purposes of this subsection, administrative costs in the form of salaries, overhead, or indirect costs for services provided and charged against activities and programs carried out with a grant under this subsection shall not exceed in any fiscal year 10 percent of the amount of the grant in such year, except that costs of implementing enforcement and regulatory activities, education, training, technical assistance, demonstration projects, and technology transfer programs shall not be subject to this limitation.

TCEQ/TSSWCB joint publication SFR-68/04 275 (I) Grants for Protecting Groundwater Quality. --

(1) Eligible Applicants and Activities. -- Upon application of a State for which a report submitted under subsection (a) and a plan submitted under subsection (b) is approved under this section, the Administrator shall make grants under this subsection to such State for the purpose of assisting such State in carrying out groundwater quality protection activities which the Administrator determines will advance the State toward implementation of a comprehensive nonpoint source pollution control program. Such activities shall include, but not be limited to, research planning, groundwater assessments, demonstration programs, enforcement, technical assistance, education and training to protect the quality of groundwater and to prevent contamination of groundwater from nonpoint sources of pollution.

(2) Applications. -- An application for a grant under this subsection shall be in such form and shall contain such information as the Administrator may require.

(3) Federal Share; Maximum Amount. -- The Federal share of the cost of assisting a State in carrying out groundwater protection activities in any fiscal year under this subsection shall be 50 percent of the costs incurred by the State in carrying out such activities, except that the maximum amount of Federal assistance which any State may receive under this subsection in any fiscal year shall not exceed $150,000.

(4) Report. -- The Administrator shall include in each report transmitted under subsection (m) a report on the activities and programs implemented under this subsection during the preceding fiscal year.

(j) Authorization of Appropriations. -- There is authorized to be appropriated to carry out subsections (h) and (I) not to exceed $70,000,000 for fiscal year 1988, $100,000,000 per fiscal year for each of fiscal years 1989 and 1990, and $130,000,000 for fiscal year 1991; except that for each of such fiscal years not to exceed $7,500,000 may be made available to carry out subsection (I). Sums appropriated pursuant to this subsection shall remain available until expended. (k) Consistency of Other Programs and Projects With Management Programs. -- The Administrator shall transmit to the Office of Management and Budget and the appropriate Federal departments and agencies a list of those assistance programs and development projects identified by each State under subsection (b)(2)(F) for which individual assistance applications and projects will be reviewed pursuant to the procedures set forth in Executive Order 12372 as in effect on September 17, 1983, the concerns of the State regarding the consistency of such applications or projects with the State nonpoint source pollution management program.

(l) Collection of Information. -- The Administrator shall collect and make available, through publications and other appropriate means, information pertaining to management practices and implementation methods, including, but not limited to, (1)

276 TCEQ/TSSWCB joint publication SFR-68/04 information concerning the costs and relative efficiencies of best management practices for reducing nonpoint source pollution; and (2) available data concerning the relationship between water quality and implementation of various management practices to control nonpoint sources of pollution.

(m) Reports of Administrator. --

(1) Annual Reports. -- Not later than January 1, 1988, and each January 1 thereafter, the Administrator shall transmit to the Committee on Public Works and Transportation of the House of Representatives and the Committee on Environment and Public Works of the Senate, a report for the preceding fiscal year on the activities and programs implemented under this section and the progress made in reducing pollution in the navigable waters resulting from nonpoint sources and improving the quality of such waters.

(2) Final Report. -- Not later than January 1, 1990, the Administrator shall transmit to Congress a final report on the activities carried out under this section. Such report, at a minimum, shall –

(A) describe the management programs being implemented by the States by types and amount of affected navigable waters, categories and subcategories of nonpoint sources, and types of best management practices being implemented;

(B) describe the experiences of the States in adhering to schedules and implementing best management practices;

(C) describe the amount and purpose of grants awarded pursuant to subsections (h) and (I) of this section;

(D) identify, to the extent that information is available, the progress made in reducing pollutant loads and improving water quality in the navigable waters;

(E) indicate what further actions need to be taken to attain and maintain in those navigable waters (I) applicable water quality standards; and (ii) the goals and requirements of this Act;

(F) include recommendations of the Administrator concerning future programs (including enforcement programs) for controlling pollution from nonpoint sources; and

(G) identify the activities and programs of departments, agencies, and instrumentalities of the United States which are inconsistent with the management programs submitted by the States and recommend modifications so that such activities and programs are consistent with and assist the States in implementation of such management programs.

TCEQ/TSSWCB joint publication SFR-68/04 277 (n) Set Aside for Administrative Personnel. -- Not less than 5 percent of the funds appropriated pursuant to subsection (j) for any fiscal year shall be available to the Administrator to maintain personnel levels at the Environmental Protection Agency at levels which are adequate to carry out this section in such year.

278 TCEQ/TSSWCB joint publication SFR-68/04 APPENDIX G FEDERAL CONSISTENCY §319(b)(2)(F) calls for each State Management Program to contain an identification of federal financial assistance programs and federal development projects for which the state will review individual assistance applications or development projects for their effect on water quality, to determine whether such activities would be consistent with the State Management Program. The Texas Review and Comment System (TRACS) will be utilized to fulfill this requirement. Consistency review of urban, non-agricultural, non-silvicultural programs is the responsibility of the TCEQ. Consistency of agricultural and silvicultural programs is reviewed by the TSSWCB.

TCEQ Review of Federal Assistance Programs This list of Federal Assistance programs was developed from the 2004 Catalog of Federal Domestic Assistance for potential use by the TCEQ in the development and administration of its NPS Management Program. Some of these programs may be reviewed by the TCEQ for consistency with its NPS Management Program. Any federal programs which the State identifies as inconsistent with its management program will be brought to the attention of the EPA. No inconsistent programs have been identified at this time.

Department of Commerce Economic Development Administration 11.300 Economic Development - Grants for Public Works and Economic Development Facilities 11.302 Economic Development - Support for Planning Organizations 11.303 Economic Development - Technical Assistance 11.307 Economic Adjustment Assistance

National Oceanic and Atmospheric Administration 11.405 Anadromous Fish Conservation Act Program 11.407 Interjurisdictional Fisheries Act of 1986 11.415 Fisheries Finance Program 11.417 Sea Grant Support 11.419 Coastal Zone Management Administration Awards 11.420 Coastal Zone Management Estuarine Research Reserve 11.426 Financial Assistance for National Centers for Coastal Ocean Science 11.427 Fisheries Development and Utilization Research and Development Grants and Cooperative Agreements Program 11.429 Marine Sanctuary Program 11.441 Regional Fishery Management Councils

TCEQ/TSSWCB joint publication SFR-68/04 279 Department of Defense

Department of the Army, Office of the Chief of Engineers 12.100 Aquatic Plant Control 12.101 Beach Erosion Control Projects 12.104 Flood Plain Management Services 12.105 Protection of Essential Highways, Highway Bridge Approaches and Public Works 12.106 Flood Control Projects 12.107 Navigation Projects 12.108 Snagging and Clearing for Flood Control 12.109 Protection, Clearing and Straightening Channels 12.110 Planning Assistance to States 12.114 Collaborative Research and Development

Office of the Assistant Secretary (Economic Security) 12.612 Community Base Reuse Plans 12.613 Growth Management Planning Assistance

Department of Housing and Urban Development Housing 14.112 Mortgage Insurance for Construction or Substantial Rehabilitation of Condominium Projects 14.117 Mortgage Insurance - Homes 14.126 Mortgage Insurance - Cooperative Projects 14.127 Mortgage Insurance - Manufactured Home Parks

Community Planning and Development 14.218 Community Development Block Grants/Entitlement Grants 14.219 Community Development Block Grants/Small Cities Program

Public and Indian Housing 14.862 Indian Community Development Block Grant Program

Department of the Interior Bureau of Land Management 15.214 Non-sale Disposals of Mineral Material 15.225 Recreation Resource Management

280 TCEQ/TSSWCB joint publication SFR-68/04 Office of Surface Mining Reclamation and Enforcement 15.250 Regulation of Surface Coal Mining and Surface Effects of Underground Coal Mining 15.252 Abandoned Mine Land Reclamation (AMLR) Program

Fish and Wildlife Service 15.605 Sport Fish Restoration 15.611 Wildlife Restoration 15.614 Coastal Wetlands Planning, Protection and Restoration Act 15.615 Cooperative Endangered Species Conservation Fund

Geological Survey 15.805 Assistance to State Water Resources Research Institutes 15.808 U. S. Geological Survey - Research and Data Acquisition

National Park Service 15.916 Outdoor Recreation - Acquisition, Development and Planning 15.919 Urban Park and Recreation Recovery Program

Department of Transportation Federal Aviation Administration 20.106 Airport Improvement Program

Federal Highway Administration 20.205 Highway Planning and Construction 20.219 Recreational Trails Program

Federal Railroad Administration 20.312 High Speed Ground Transportation - Next Generation High Speed Rail Program

Federal Transit Administration 20.500 Federal Transit Capital Investment Grants 20.507 Federal Transit Formula Grants 20.509 Formula Grants for Other Than Urbanized Areas

Maritime Administration 20.801 Development and Promotion of Ports and Intermodal Transportation 20.812 Construction Reserve Fund

TCEQ/TSSWCB joint publication SFR-68/04 281 General Services Administration 39.002 Disposal of Federal Surplus Real Property

Small Business Administration 59.012 Small Business Loans

Environmental Protection Agency Office of Air and Radiation 66.001 Air Pollution Control Program Support

Office of Water 66.419 Water Pollution Control - State and Interstate Program Support 66.424 Surveys, Studies, Demonstrations and Special Purpose - §1442 of the Safe Drinking Water Act 66.433 State Underground Water Source Protection 66.439 Targeted Watershed Initiative 66.454 Water Quality Management Planning 66.456 National Estuary Program 66.458 Capitalization Grants for Clean Water State Revolving Funds 66.460 Nonpoint Source Implementation Grants 66.461 Wetland Program Development Grants 66.463 Water Quality Cooperative Agreements 66.468 Capitalization Grants for Drinking Water State Revolving Funds 66.472 Beach Monitoring and Notification Program Implementation Grants 66.474 Water Protection Grants to the States 66.475 Gulf of Mexico Program 66.476 Vulnerability Assessments and Related Security Improvements at Large Drinking Water Utilities 66.477 Vulnerability Assessments and Related Security Improvements at Large Privately-Owned Community Drinking Water Utilities 66.478 Water Security Training and Technical Assistance Grant Program

Offices of Air and Radiation; Water; Environmental Justice; Environmental Information; Enforcement and Compliance Assurance; Pesticides, Prevention and Toxic Substances; and Solid Waste and Emergency Response

66.500 Environmental Protection - Consolidated Research 66.600 Environmental Protection Consolidated Grants Program Support 282 TCEQ/TSSWCB joint publication SFR-68/04 66.605 Performance Partnership Grants

Office of Enforcement and Compliance Assurance 66.700 Consolidated Pesticide Enforcement Cooperative Agreements

Office of Prevention, Pesticides and Toxic Substances 66.708 Pollution Prevention Grants Program

Office of Solid Waste and Emergency Response 66.805 Leaking Underground Storage Tank Trust Fund Program

Office of Research and Development 66.807 Superfund Innovative Technology Evaluation Program

Office of Environmental Education 66.951 Environmental Education Grants

Department of Energy Civilian Radioactive Waste Management 81.065 Nuclear Waste Disposal Siting

Office of Environmental Management 81.104 Office of Technology Development and Deployment for Environmental Management

TCEQ Review of Federal Development Projects The following is a list of the types of plans and development projects that are initiated and managed by Federal agencies which may have an impact on the State's nonpoint source management program. Not all of the activities listed below will be eligible for §319 federal consistency reviews pursuant to Executive Order 12372.

USDA, Forest Service Forest Plans Resource Area Analyses Integrated Resource Management Plans Timber Activities/Sales Range Activities/Game Range Analysis Chemicals/Herbicides Area Analysis/Cumulative Impacts Analysis Recreation Development Transportation Plans

TCEQ/TSSWCB joint publication SFR-68/04 283 Soil and Water Management Water Uses and Development Soil and Water Improvement Projects Public Water Supply Watershed Management Hydrologic Modification Wetlands Protection "Every Species Counts" - recovery of threatened/endangered flora, fauna, fish, wildlife, invertebrates, plants Watershed, Fish, Wildlife, Air and Rare Plants Program Riparian Management and Restoration and Wetlands Habitats Programs Minerals Exploration and Development Fuels Management Applications for Permits to Drill Oil and Gas Leasing/Reclamation Plans Hydropower Licensing Activity in Coordination with Federal Energy Regulatory Commission (FERC)/Special Use Permitting ORV (Off-road Vehicles) Activities Forest Fire Protection Soil and Water Monitoring Program Allotment Management Planning and Administration Road Construction and Maintenance Municipal Watershed Management Program Floodplain Modifications

USDA, Natural Resources Conservation Service/Farm Service Agency Small Watershed Program

Department of the Interior, Bureau of Land Management Watershed Projects Mineral Exploration and Development Coal, Oil and Gas Leasing Coal Reclamation Road Restoration, Upgrades and Closures Timber Activities Rangeland Management Program Chemical Pest Control/Pesticide Use Report "Bring Back the Natives" - Conservation of Native Fishes Area Analysis/Cumulative Impacts Resource Management Plans Wetlands Protection Riparian Management Areas and Riparian Reserves Hydrologic Units Mapping Transportation Plans Areas of Critical Environmental Concern (ACEC) Plans

284 TCEQ/TSSWCB joint publication SFR-68/04 Department of the Interior, Bureau of Reclamation National Desalination Clearinghouse Fisheries Applications Research Flood Hydrology Geotechnical Engineering Hydroelectric Research National Irrigation Water Quality Program (NIWQP) Remote Sensing and GIS Resource Management and Planning River Systems and Meteorology Sedimentation and River Hydraulics Stream Corridor Restoration Water Conservation Field Services Program Water Operations - Upper and Lower Colorado River Regions

Department of the Interior, Fish and Wildlife Service Management of National Wildlife Conservation - Refuges and Proposed Acquisitions

Department of the Interior, Surface Mining Regulation of active mines and reclamation of abandoned mines Abandoned Mine Lands (AML) Program

Department of Defense, Defense Installations Land Management Plans Location, design and acquisition of new or expanded defense installations

Department of Defense, Corps of Engineers Dredging Channel Improvement Breakwaters Harbors and navigation channels Erosion control structures Shoreline Protection - Beach Replenishment Regulation/Permitting - including wetlands Dams or flood control works Ice management practices Land acquisition for spoil disposal or other purposes Selection of open water disposal sites

TCEQ/TSSWCB joint publication SFR-68/04 285 Department of Transportation, Federal Aviation Administration Location, design, construction, maintenance and demolition of Federal aids to air navigation

Department of Transportation, U.S. Coast Guard Location, design, construction, or enlargement of Coast Guard stations, bases, and lighthouses Location, placement, or removal of navigation devices which are not part of the routine operations under the Aids to Navigation Program Expansion, abandonment, designation of anchorages, lighting areas, or shipping lanes and ice management practices and activities

General Services Administration Acquisition, location, and design of proposed Federal government property or buildings, whether leased or owned by the Federal government

286 TCEQ/TSSWCB joint publication SFR-68/04 APPENDIX H FUNDING Funding sources available to support programs related to nonpoint source pollution include:

Federal # CWA §104(b)(3) # CWA §106 Funds # CWA §319(h) Grant Funds # CWA §604(b) Funds # FIFRA Funds # Safe Drinking Water Act Grant Funds # Solid Waste Disposal Act, §8001 # Superfund # Non-game and Endangered Species Fund

STATE # STATE GENERAL REVENUE FUNDS # WATER QUALITY PERMIT FEES # WATER RIGHTS PERMIT FEES # STATE REVOLVING FUND # TEXAS WATER DEVELOPMENT BOARD LOAN PROGRAMS AND DEVELOPMENT FUNDS # GENERAL LAND OFFICE OIL SPILL FUND # OSSF PERMIT AND LICENSE FEES # FUND 0270, SOLID WASTE TIPPING FEES # FUND 5500, STATE HAZARDOUS AND SOLID WASTE REMEDIATION FEES # SOLID WASTE FUND # FUND 4680, TEXAS IRRIGATORS FUND # FUND 0790, WATER WELL DRILLERS # TEXAS CONSERVATION FUND # WILDSCAPES FEES AND POSTER AND STAMP SALES # RIVER AUTHORITY FUNDS

SPECIFIC FUNDING FOR TCEQ PROGRAMS The Nonpoint Source Program Team is funded by Clean Water Act §319(h) and by State General Revenue Funds.

TCEQ/TSSWCB joint publication SFR-68/04 287 The Clean Rivers Program is supported by the water quality fees from wastewater discharge permits and water rights permits. Federal funding for Water Quality Management Plans is provided by EPA through a 1% reserve of annual allocated funds to the Texas Water Development Board for State Revolving Fund (SRF) loans. Of this amount, 40% is passed through to the seven designated area regional planning agencies.

Standards development and implementation and wetlands certification are funded by §106 of the Clean Water Act and by State General Revenue Funds.

The ongoing activities of the Surface Water Quality Monitoring Team are funded by §106 and State General Revenue Funds.

Water Quality Modeling is funded by Clean Water Act 604(b) funds and State General Revenue.

State General Revenue Funds, FEMA, and Clean Water Act §319(h) funds support the Resource Protection Team, Interstate Compacts Team, and Water Rights Permit Team (Water Rights Permitting and Availability Section) activities.

The Texas Watch Program (volunteer monitoring) is currently funded by Clean Water Act §319(h).

The Groundwater Planning and Assessment Team is funded from §106 ground water funds, FIFRA funds, and State General Revenue Funds.

The Galveston Bay Estuary Program is a continuation of the National Estuary Program receiving funding under §320 fo the Clean Water Act, State General Revenue Funds, Clean Water Act §104(b)(3) funds, and limited contributions from local governments.

Funding for the Coastal Bend Bays and Estuaries Program comes from Clean Water Act Sections 104(b)(3) and 320 funds and State General Revenue Funds.

Funding for the Source Water Assessment and Protection Program is from the Drinking Water State Revolving Fund. This fund was established under §1452 by Congress to achieve or maintain compliance with Safe Drinking Water Act requirements.

Funding for the Small Towns Environmental Program comes from two self-help funds: one administered by the Office of Rural Community Affairs, and one from the Texas Water Development Board.

Funding for the On-Site Sewage Facilities program comes from the Clean Water Act §319 portion of the Performance Partnership Grant awarded by EPA. However, legislation has also provided for the following methods of funding for continued program operations:

288 TCEQ/TSSWCB joint publication SFR-68/04 # Fees may be collected for all OSSF permits issued by TCEQ. The fees collected by the authorized agents are not controlled by the TCEQ and vary between entities. # OSSF installers are required to pay a fee to obtain a license, and a yearly renewal fee to maintain the license.

Clean Texas- Cleaner World funds come from Fund 0270, solid waste tipping fees, and CWA Sections 319(h) and 106 grants.

Texas Country Cleanups and the Lake and River Cleanup are funded from the Solid Waste Fund. Fund 5500, from hazardous waste generation fees, provides funds for the Agricultural Waste Pesticide Program and the Household Hazardous Waste Program.

The Used Oil and Used Oil Filter Recycling Program is funded by revenues in the Used Oil Recycling Fund.

Funding for the Emergency Response Program, the Superfund Site Discovery and Assessment Team, and the Natural Resource Damage Assessment Team comes from Fund 5500, State Hazardous and the Solid Waste Remediation Fee Fund.

The Illegal Disposal Program is funded under the Solid Waste Disposal Act, §8001, and with State General Revenue Funds.

Occupational Certification Program funding comes from the following areas: # Landscape Irrigation: Fund 4680 # On-site Sewage Facility Installation: General Revenue Fund 0010 # Water Well Drilling: Fund 0790 # Water Pump Installation: Fund 0790

Funding for the Edwards Aquifer Program comes from State funds supplemented by 319 grant funding.

Funding Sources for Agricultural & Silvicultural Nonpoint Source Pollution Abatement In Texas, planning, implementing, and managing programs and practices for the abatement of agricultural and silvicultural nonpoint source pollution is the responsibility of the Texas State Soil and Water Conservation Board. However, other organizations and their programs play major roles. Because nonpoint source control is costly, efforts in Texas tend to rely on cooperation and coordination to make use of existing resources where possible.

Nonpoint source management programs utilize existing information, education, and demonstration capabilities to educate and inform farmers, ranchers, and other producers of the potential for nonpoint source pollution to occur as a result of

TCEQ/TSSWCB joint publication SFR-68/04 289 agricultural or silvicultural activities. Technical assistance programs, both state and federal, are used to assist in the implementation of best management practices contained in nonpoint source management programs. Cost-share incentive programs are utilized where applicable and available to provide incentives for installation of best management practices. Research organizations are relied upon to provide needed research to advance the effectiveness of nonpoint source management programs and keep pace with advances in agricultural and silvicultural production methods. Loan programs, where applicable, help producers implement best management practices. Where necessary and desirable, new and innovative solutions are sought to address problems that cannot be handled by existing programs.

Below is a brief description of the major funding sources used in Texas to address agricultural and silvicultural nonpoint source pollution:

# Water Quality Management Plan Program - Cost-share assistance for water quality benefits is available through the TSSWCB Water Quality Management Plan Program (a.k.a. Senate Bill 503 Program). # Nonpoint Source Implementation Grants (319 Program) - The 319 program administered by the TSSWCB provides funding to implement projects to abate agricultural and silvicultural nonpoint source pollution. # Watershed Protection and Flood Prevention Program - Projects eligible for funding through this NRCS administered program include watershed protection, flood prevention, erosion and sediment control, water supply, water quality, fish and wildlife habitat enhancement wetlands creation and restoration, and public recreation in watersheds of 250,000 or fewer acres. # Wetlands Reserve Program (WRP) - WRP is a voluntary program administered by NRCS that provides technical and financial assistance to eligible landowners to enhance degraded wetlands in exchange for retiring marginal land from agriculture. # Environmental Quality Incentives Program (EQIP) - EQIP is a voluntary conservation program administered by NRCS that provides farmers and ranchers with financial and technical assistance to install or implement structural and management conservation practices to address local natural resource concerns on eligible agricultural land. # Agricultural Loan Program (Farm Loan Program) - FSA makes direct and guaranteed farm ownership and operating loans to farmers and ranchers who are temporarily unable to obtain private, commercial credit for land purchases, livestock, equipment, feed, seed and supplies. # Conservation Reserve Program (CRP) - CRP is a voluntary conservation program administered by FSA, with NRCS providing technical assistance, that provides technical and financial assistance to eligible farmers and ranchers to address soil, water, and related

290 TCEQ/TSSWCB joint publication SFR-68/04 resource concerns through conversion of sensitive acreage to vegetative cover in return for annual rental payments. # Creekside Conservation Program - A partnership between Lower Colorado River Authority, NRCS and local SWCDs to provide technical and financial assistance to reduce sedimentation and nonpoint source pollution on privately owned land in 11 counties in the Colorado River Basin. # Forest Land Enhancement Program (FLEP) - FLEP, administered by the Texas Forest Service, provides financial, technical, educational and related assistance to private landowners in actively managing their land. # Coastal Zone Management Administration/Implementation Awards - Funds are available to support NPS projects in the coastal management zone and to implement agricultural and silvicultural management measures in the Texas Coastal Nonpoint Pollution Control Plan. # Clean Water State Revolving Funds - This program, administered by the TWDB, provides incorporated political subdivisions (Cities, Towns) with the authority to own and operate a wastewater system. It also provides incorporated political subdivisions, unincorporated political subdivisions (Counties, River Authorities, Water Supply Districts, Independent School Districts), and private individuals or non-profit entities (for nonpoint source pollution control loans only) loans for the financing, planning, design and construction of projects for wastewater treatment facilities, reuse and recycle facilities, collection systems, storm water pollution controls, and implementation of nonpoint source pollution controls.

TCEQ/TSSWCB joint publication SFR-68/04 291 APPENDIX I SUMMARY OF PUBLIC RESPONSES

A public notice of final review was posted in the Texas Register on July 15, 2005 for a 30 day period, which ended on August 14, 2005. No comments were received during this public final review period.

292 TCEQ/TSSWCB joint publication SFR-68/04 APPENDIX J ACRONYMS AND ABBREVIATIONS AAH Adopt-a-Highway AFOs animal feeding operations ASDWA Association of State Drinking Water Administrators ASIWPCA Association for State and Interstate Water Pollution Control Administrators AST aboveground storage tank AWWA American Water Works Association BEG Bureau of Economic Geology BEIF Border Environment Infrastructure Fund BMPs best management practices BRC Bureau of Radiation Control BSEACD Barton Springs/Edwards Aquifer Conservation District CAFOs concentrated animal feeding operations CBBEP Coastal Bend Bays & Estuaries Program CCC Commodity Credit Corporation CCC Coastal Coordination Council CCMP Comprehensive Conservation and Management Plan CFR Code of Federal Regulations COGs Councils of Government COMAPA Comision Municipal de Agua Potable y Alcantarillado CMP Coastal Management Program CRP Clean Rivers Program CSG Council of State Governments CWA Clean Water Act CWSRF Clean Water State Revolving Fund CZMA Coastal Zone Management Act DFE Dallas Floodway Extension DSHS Texas Department of State Health Services DMWT Don't Mess with Texas DoC Drop-off Center DOPA Dairy Outreach Program Areas EDAP Economically Distressed Areas Program EMPACT Environmental Monitoring for Public Access and Community Tracking EPWU City of El Paso Water Utilities EQIP Environmental Quality Incentives Program FIFRA Federal Insecticide, Fungicide and Rodenticide Act FLEP Forest Land Enhancement Program GBEP Galveston Bay Estuary Program GCRP Gulf of Mexico Community-Based Restoration Program GLO Texas General Land Office GPC Texas Groundwater Protection Committee GWPC Ground Water Protection Council HHW household hazardous waste IBWC International Boundary Water Commission

TCEQ/TSSWCB joint publication SFR-68/04 293 ISD independent school district iSWM integrated Storm Water Management KAST Kills and Spills Team KTB Keep Texas Beautiful LCRA Lower Colorado River Authority LPST leaking petroleum storage tank MCL's maximum contaminant levels MDL minimum detection level MSW municipal solid waste MxIBWC Mexico International Boundary Water Commission NADB North American Development Bank NAFTA North American Free Trade Agreement NAWQA National Water Quality Assessment Program NCTCOG North Central Texas Council of Governments NFIP National Flood Insurance Program NIPF nonindustrial private forest NLIWTP Nuevo Laredo International Wastewater Treatment Plant NNRCF National Natural Resources Conservation Foundation NOAA National Oceanic and Atmospheric Administration NPDES National Pollutant Discharge Elimination System NPS nonpoint source pollution NRCS Natural Resources Conservation Service OAG Texas Office of Attorney General OFCU Oil Field Clean Up OSPR Oil Spill Prevention and Response OSPRA Oil Spill Prevention and Response Act of 1991 OSSF on-site sewage facilities PCBs polychlorinated biphenyls PMP Pesticide Management Plan PWE Public Works and Engineering RG/RBBC Rio Grande/Rio Bravo Basin Coalition RCRA Resource Conservation and Recovery Act RRC Railroad Commission of Texas SDWA Safe Drinking Water Act SEP supplemental environmental project SPCB Structural Pest Control Board SWA source water assessment SWCDs Soil and Water Conservation Districts SWP source water protection TAES Texas Agricultural Experiment Station TAGD Texas Alliance of Groundwater Districts TCC Texas Chemical Council TCE Texas Cooperative Extension TCEQ Texas Commission on Environmental Quality TDA Texas Department of Agriculture TDLR Texas Department of Licensing and Regulation

294 TCEQ/TSSWCB joint publication SFR-68/04 TDS Total dissolved solids TES Teaching Environmental Sciences TFA Texas Forestry Association TFS Texas Forest Service TGPC Texas Groundwater Protection Committee TIAER Texas Institute for Applied Environmental Research TMDL Total Maximum Daily Load TPDES Texas Pollutant Discharge Elimination System TPWD Texas Parks and Wildlife Department TSSWCB Texas State Soil and Water Conservation Board TSWQS Texas Surface Water Quality Standards TWC Texas Water Code TWDB Texas Water Development Board TWPC Texas Watershed Protection Committee TxDOT Texas Department of Transportation UCRA Upper Colorado River Authority UIC underground injection control USDW underground sources of drinking water USGS United States Geological Survey USIBWC United States International Boundary Water Commission UST underground storage tank VCP Voluntary Cleanup Program WET Water Education for Teachers WPAP water pollution abatement plan WQMP water quality management plans WRP Wetlands Reserve Program

TCEQ/TSSWCB joint publication SFR-68/04 295 APPENDIX K WEB SITES OF INTEREST This list offers readers with web addresses for web sites that contain information about the programs, agencies, and organizations discussed in this document. Many are organizational home pages that have links to more detailed information regarding nonpoint source pollution.

Bay and Estuary Programs Coastal Bend Bay and Estuaries Program http://www.cbbep.org/

Galveston Bay and Estuaries Program http://gbep.state.tx.us

Cities City of Abilene http://www.abilenetx.com

City of Austin http://www.ci.austin.tx.us/

City of Dallas http://www.dallascityhall.com/

City of Denton http://www.cityofdenton.com

City of El Paso http://www.ci.el-paso.tx.us/default.asp

City of Fort Worth http://www.fortworthgov.org

City of Houston http://www.houstontx.gov/

City of Laredo http://www.ci.laredo.tx.us/

City of San Angelo http://www.sanangelotexas.org

City of San Antonio http://www.sanantonio.gov

296 TCEQ/TSSWCB joint publication SFR-68/04 Council of Governments Council of State Governments http://www.csg.org/csg/default

Houston Galveston Area Council http://www.h-gac.com/HGAC/home/

North Central Texas Council of Governments http://www.nctcog.org

Federal Agencies National Natural Resources Conservation Foundation http://www.nrcs.usda.gov/

National Oceanic and Atmospheric Administration http://www.noaa.gov/

U.S. Army Corp of Engineers http://www.usace.army.mil/

U.S. Coast Guard http://www.uscg.mil/USCG.shtm

U.S. Department of Agriculture http://www.usda.gov/

U.S. Environmental Protection Agency http://www.epa.gov/

U. S. Geological Survey http://www.usgs.gov/

Groundwater Protection Barton Springs/Edwards Aquifer Conservation District http://www.bseacd.org/

Edwards Aquifer Authority http://www.edwardsaquifer.org/

Groundwater Protection Council http://www.gwpc.org/

TCEQ/TSSWCB joint publication SFR-68/04 297 Texas Alliance of Groundwater Districts or Texas Groundwater Alliance http://www.texasgroundwater.org/

Texas Groundwater Protection Committee http://www.tgpc.state.tx.us/

Industrial Councils Texas Chemical Council http://www.txchemcouncil.org/

Texas Nursery and Landscape Association http://txnla.org/

Interstate and International Agencies American Water Works Association http://www.awwa.org/

Association of State Drinking Water Administrators http://www.asdwa.org

Association for State and Interstate Water Pollution Control Administrators http://www.asiwpca.org/

Border Environment Cooperation Commission http://www.cocef.org/ingles.php

International Boundary and Water Commission http://www.ibwc.state.gov/

North American Development Bank http://www.nadbank.org/

Pollution Control Administrators http://www.asiwpca.org/

Rio Grande/Rio Bravo Basin Coalition http://www.rioweb.com

River Authorities Brazos River Authority http://www.brazos.org

298 TCEQ/TSSWCB joint publication SFR-68/04 Lower Colorado River Authority http://www.lcra.org/index.html

San Antonio River Authority http://www.sara-tx.org

Upper Colorado River Authority http://www.ucratx.org

State Agencies Agriculture Resource Protection Authority http://www.agr.state.tx.us/

Bureau of Economic Geology (University of Texas) http://www.beg.utexas.edu

Coastal Coordination Council http://www.glo.state.tx.us/coastal/ccc.html

Railroad Commission of Texas http://www.rrc.state.tx.us

Structural Pest Control Board http://www.spcb.state.tx.us/

Texas Agricultural Experiment Station http://agresearch.tamu.edu/

Texas A&M On-Site Treatment Training Center http://primera.tamu.edu/IRRGSYS/waste.htm

Texas Commission on Environmental Quality http://www.tceq.state.tx.us/index.html

Texas Cooperative Extension Services http://texasextension.tamu.edu/

Texas Department of Agriculture http://www.agr.state.tx.us

Texas Department of State Health Services http://www.DSHS.state.tx.us

Texas Department of Licensing and Regulation http://www.license.state.tx.us/

TCEQ/TSSWCB joint publication SFR-68/04 299 Texas Department of Transportation http://www.dot.state.tx.us

Texas General Land Office http://www.glo.state.tx.us

Texas Farm Services Agency http://www.fsa.usda.gov/tx/

Texas Forest Service http://txforestservice.tamu.edu/

Texas Forestry Association http://www.texasforestry.org/

Texas Institute for Applied Environmental Research (Tarleton State Univ.) http://tiaer.tarleton.edu/

Texas Office of Attorney General http://www.oag.state.tx.us/

Texas On-Site Wastewater Treatment Research Council http://www.towtrc.state.tx.us/

Texas Parks and Wildlife Department http://www.tpwd.state.tx.us

Texas Secretary of State Office http://www.sos.state.tx.us/

Texas State Soil and Water Conservation Board http://www.tsswcb.state.tx.us/

Texas Watch (Texas State University) http://www.texaswatch.geo.swt.edu/

Texas Water Development Board http://www.twdb.state.tx.us

Texas Water Resources Institute (Texas A&M University) http://twri.tamu.edu/

300 TCEQ/TSSWCB joint publication SFR-68/04 33.1. Preservation; How Shown, TX R APP Rule 33.1

Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos) Rule 33. Preservation of Appellate Complaints (Refs & Annos)

TX Rules App.Proc., Rule 33.1

33.1. Preservation; How Shown

Currentness

(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.

(c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal.

(d) Sufficiency of Evidence Complaints in Nonjury Cases. In a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence--including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact--may be made for the first time on appeal in the complaining party's brief.

Credits Eff. Sept. 1, 1997. Amended by Supreme Court Dec. 23, 2002, eff. Jan. 1, 2003.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 33.1. Preservation; How Shown, TX R APP Rule 33.1

Editors' Notes

NOTES AND COMMENTS Comment to 2002 change: The last sentence of former Rule 52(d) of the Rules of Appellate Procedure has been reinstated in substance.

Notes of Decisions (3438)

Rules App. Proc., Rule 33.1, TX R APP Rule 33.1 Current with amendments received through 6/1/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 43.2. Types of Judgment, TX R APP Rule 43.2

Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos) Rule 43. Judgment of the Court of Appeals (Refs & Annos)

TX Rules App.Proc., Rule 43.2

43.2. Types of Judgment

Currentness

The court of appeals may:

(a) affirm the trial court's judgment in whole or in part;

(b) modify the trial court's judgment and affirm it as modified;

(c) reverse the trial court's judgment in whole or in part and render the judgment that the trial court should have rendered;

(d) reverse the trial court's judgment and remand the case for further proceedings;

(e) vacate the trial court's judgment and dismiss the case; or

(f) dismiss the appeal.

Credits Eff. Sept. 1, 1997.

Notes of Decisions (119)

Rules App. Proc., Rule 43.2, TX R APP Rule 43.2 Current with amendments received through 6/1/2015

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Vernon's Texas Rules Annotated Texas Rules of Evidence (Refs & Annos) Article VIII. Hearsay (Refs & Annos)

TX Rules of Evidence, Rule 801

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

Currentness

(a) Statement. “Statement” means a person's oral or written verbal expression, or nonverbal conduct that a person intended as a substitute for verbal expression.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Matter Asserted. “Matter asserted” means:

(1) any matter a declarant explicitly asserts; and

(2) any matter implied by a statement, if the probative value of the statement as offered flows from the declarant's belief about the matter.

(d) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(e) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and:

(i) when offered in a civil case, was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; or

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Rule 801. Definitions That Apply to This Article; Exclusions..., TX R EVID Rule 801

(ii) when offered in a criminal case, was given under penalty of perjury at a trial, hearing, or other proceeding--except a grand jury proceeding--or in a deposition;

(B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

(3) A Deponent's Statement. In a civil case, the statement was made in a deposition taken in the same proceeding. “Same proceeding” is defined in Rule of Civil Procedure 203.6(b). The deponent's unavailability as a witness is not a requirement for admissibility.

Credits Adopted eff. March 1, 1998. Amended eff. Jan. 1, 1999. Amended by orders of Supreme Court March 10, 2015 and Court of Criminal Appeals March 12, 2015, eff. April 1, 2015.

Editors' Notes

NOTES AND COMMENTS

Comment to 2015 Restyling: Statements falling under the hearsay exclusion provided by Rule 801(e)(2) are no longer referred to as “admissions” in the title to the subdivision. The term “admissions” is confusing because not all statements covered by the exclusion are admissions in the colloquial sense--a statement can be within the exclusion even if it “admitted” nothing and was not against the party's interest when made. The term “admissions” also raises confusion in comparison with the Rule 803(24) exception for declarations against interest. No change in application of the exclusion is intended.

The deletion of former Rule 801(e)(1)(D), which cross-references Code of Criminal Procedure art. 38.071, is not intended as a substantive change. Including this cross-reference made sense when the Texas Rules of Criminal

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Rule 801. Definitions That Apply to This Article; Exclusions..., TX R EVID Rule 801

Evidence were first promulgated, but with subsequent changes to the statutory provision, its inclusion is no longer appropriate. The version of article 38.071 that was initially cross-referenced in the Rules of Criminal Evidence required the declarant-victim to be available to testify at the trial. That requirement has since been deleted from the statute, and the statute no longer requires either the availability or testimony of the declarant-victim. Thus, cross- referencing the statute in Rule 801(e)(1), which applies only when the declarant testifies at trial about the prior statement, no longer makes sense. Moreover, article 38.071 is but one of a number of statutes that mandate the admission of certain hearsay statements in particular circumstances. See, e.g., Code of Criminal Procedure art. 38.072; Family Code §§ 54.031, 104.002, 104.006. These statutory provisions take precedence over the general rule excluding hearsay, see Rules 101(c) and 802, and there is no apparent justification for cross-referencing article 38.071 and not all other such provisions.

Notes of Decisions (730)

Rules of Evid., Rule 801, TX R EVID Rule 801 Current with amendments received through 6/1/2015

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