ACCEPTED 15-24-00050-cv FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/28/2025 4:00 PM Cause No. 15-24-00050-CV CHRISTOPHER A. PRINE CLERK IN THE COURT OF APPEALS FOR THE FIFTEENTH DISTRICT OF TEXAS 15th COURT OF APPEALS FILED IN AUSTIN, TEXAS
Texas Commission on Environmental Quality 1/28/2025 4:00:08 PM
and Guadalupe-Blanco River Authority, CHRISTOPHER A. PRINE Clerk Appellants, v. National Wildlife Federation, Appellee.
REPLY BRIEF OF APPELLANT, THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
On Appeal from the 98th Judicial District Court of Travis County, Texas, Cause No. D-1-GN-20-00709-007096
KEN PAXTON KATIE B. HOBSON Attorney General of Texas Assistant Attorney General State Bar No. 24082680 BRENT WEBSTER Katie.Hobson@oag.texas.gov First Assistant Attorney General Office of the Attorney General RALPH MOLINA Environmental Protection Division Deputy First Assistant Attorney P. O. Box 12548, MC-066 General Austin, Texas 78711-2548 (512) 463-2012 JAMES LLOYD (512) 320-0911 (fax) Deputy Attorney General for Civil Litigation COUNSEL FOR THE TEXAS COMMISSION ON KELLIE E. BILLINGS-RAY ENVIRONMENTAL QUALITY Chief, Environmental Protection Division
January 28, 2025
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
Index of Authorities................................................................................... ii
Glossary of Terms and Abbreviations...................................................... iv
Summary of the Argument ....................................................................... 1
Argument ................................................................................................... 2
I. The Court must read the habitat assessment statute in context of Chapter 11 as a whole; doing so supports the Commission’s determination that the statute does not apply to GBRA’s application. .................................................. 2
II. GBRA’s Application provided the Commission with enough information to make the requisite determinations for issuance of the permit under Chapter 11 of the Texas Water Code. ..................................... 7
III. None of the errors alleged in NWF’s suit for judicial review of the Commission’s Order prejudiced NWF’s substantial rights. ................................................................. 11
Conclusion and Prayer ............................................................................ 14
Certificate of Compliance ........................................................................ 16
Certificate of Service ............................................................................... 17
i INDEX OF AUTHORITIES
Cases
AC Interests, L.P. v. Tex. Comm’n on Envtl. Quality, 543 S.W.3d 703 (Tex. 2018) ................................................................... 9
Chisolm v. Bewley Mills, 287 S.W.3d 943 (Tex. 1956) ................................................................... 9
City of Schertz v. Tex. Comm’n on Envtl. Quality, 653 S.W.3d 468 (Tex. App.—Amarillo 2022, no pet.).......................... 13
Dyer v. Tex. Comm’n on Envtl. Quality, 646 S.W.3d 498 (Tex. 2022) ................................................................. 13
Image API, LLC v. Young, 691 S.W.3d 831 (Tex. 2024) ................................................................... 8
TJFA, L.P. v. Tex. Comm’n on Envtl. Quality, 632 S.W.3d 660 (Tex. App.—Austin 2021, pet. denied) ........................ 5
Constitutional Provisions & Statutes
33 U.S.C. § 1311 ...................................................................................... 10
33 U.S.C. § 1344 ...................................................................................... 10
Tex. Gov’t Code § 2001.171 ..................................................................... 13
Tex. Gov’t Code § 2001.174 ..................................................................... 12
Tex. Water Code § 11.021.......................................................................... 2
Tex. Water Code § 11.0235(b) ................................................................... 4
Tex. Water Code. § 11.0235(c) ................................................................... 3
Tex. Water Code § 11.02361(a)-(b) ............................................................ 3
Tex. Water Code § 11.02362(o) ................................................................. 3
Tex. Water Code § 11.124(a)(5) ........................................................... 7, 11
ii Tex. Water Code § 11.134................................................................ 1, 7, 11
Tex. Water Code § 11.147(e-3) ........................................................ 3, 4, 12
Tex. Water Code § 11.1471(a)(1) ............................................................... 4
Tex. Water Code § 11.152................................................................ passim
Tex. Water Code Ch. 11 .................................................................. passim
Rules & Regulations
30 Tex. Admin. Code § 281.1 ..................................................................... 9
30 Tex. Admin. Code § 281.4(7) ................................................................ 9
30 Tex. Admin. Code § 295.2(a) ................................................................ 8
30 Tex. Admin. Code § 297.53 ................................................................... 6
30 Tex. Admin. Code § 297.53(f) ............................................................... 7
30 Tex. Admin. Code § 298.15(b) .............................................................. 6
30 Tex. Admin. Code § 298.380(c) ........................................................... 10
30 Tex. Admin. Code Ch. 298 .................................................................... 4
30 Tex. Admin. Code Ch. 299 .................................................................. 10
Other Authorities
36 Tex. Reg. 2908 (May 6, 2001) ............................................................... 3
37 Tex. Reg. 6629 (Aug. 24, 2012) ................................................... 3, 7, 10
iii GLOSSARY OF TERMS AND ABBREVIATIONS
Term Meaning
APA Administrative Procedure Act AR Administrative Record E-Flows Environmental Flow Standards GBRA Guadalupe-Blanco River Authority, Appellant NWF National Wildlife Federation, Appellee TCEQ or Texas Commission on Environmental Quality, Commission Appellant
iv SUMMARY OF THE ARGUMENT
The Commission was right to apply the environmental flow
standards for the Guadalupe River Basin in lieu of conducting the site-
specific environmental impact analysis that NWF advocates. NWF’s
labored interpretation of the site-specific habitat mitigation statute at
Section 11.152 does not fit in the context of the rest of Chapter 11 and it
subverts the Legislature’s plain intent to programmatically manage flow
in this basin.
Further, NWF fails to persuade that Chapter 11 requires anything
more specific than what it says—applications must “state the location
and describe the proposed facilities.” Tex. Water Code § 11.134. And
rather than mandate denial, TCEQ’s rules governing water use
applications give the agency many avenues for getting whatever
information the agency needs to aid its decision-making. But no more-
specific information was required in this case for TCEQ to conduct a full
water availability and environmental flow analysis as required by
Chapter 11, particularly in a basin where environmental flow standards
have already been developed and a wealth of data and analysis already
exists about the basin’s needs. NWF wants a result that is simply not
1 supported by the text as a whole and the district court erred in
determining otherwise.
Finally, and importantly, NWF has another problem. The
substantial rights of NWF’s members are not impacted by the errors they
allege—their seafood restaurants in San Antonio Bay would not benefit
even if each of their points of error were addressed on remand—so
reversal under the Administrative Procedures Act is not appropriate.
The district court’s Amended Final Judgment should be reversed,
and the Commission’s final order should be affirmed in all respects.
ARGUMENT
I. The Court must read the habitat assessment statute in context of Chapter 11 as a whole; doing so supports the Commission’s determination that the statute does not apply to GBRA’s application.
Texas Water Code Chapter 11 is a unique environmental statute.
It is a state law (with no federal corollary) devoted specifically and solely
to evaluating applications and granting permits for the use of state-
owned water 1 in a way that manages instream flows:
The legislature has expressly required the commission while balancing all other public interests to consider, and to the extent practicable, provide for the freshwater inflows
1 Tex. Water Code § 11.021.
2 and instream flows necessary to maintain the viability of the state’s streams, rivers, and bay and estuary systems in the commission’s regular granting of permits for the use of state waters.
Tex. Water Code. § 11.0235(c). Water availability is the core of Chapter
11, and the Legislature has recognized the importance of environmental
flows by establishing for their protection in specified basins at a
programmatic level. Tex. Water Code § 11.147(e-3) (requiring the
Commission to adopt e-flow standards) 36 Tex. Reg. 2908, 2937 (rules
adopting SB3); 37 Tex. Reg. 6629, 6655 (adopting environmental flow
standards specific to the Guadalupe River). The process for setting these
environmental flow standards demonstrates how comprehensive this
change is meant to be. It involves both the formation of a statewide
Environmental Flows (E-Flows) Advisory Group and a Science Advisory
Committee, comprised of members required by statute to have
demonstrated expertise in “aquatic and terrestrial biology” “pertinent to
the evaluation of environmental flows.” Tex. Water Code § 11.02361(a)-
(b). In addition, Chapter 11 requires basin-specific stakeholder
committees and dedicated basin expert science teams. Id. at 11.02362(o).
These groups’ expertise and work form the basis of each set of basin-
specific environmental flow standards, all of which were formally
3 adopted through notice-and-comment rulemaking only after the
incorporation of extensive stakeholder input. See 30 Tex. Admin. Code
Ch. 298. The environmental flow regime is the tool by which the
Commission manages the ecological and biological soundness of each E-
Flows basin (the Guadalupe, San Antonio, Mission, and Aransas Rivers
and Mission, Copano, Aransas, and San Antonio Bays). Tex. Water Code
§ 11.1471(a)(1); see also id. § 11.0235(b).
NWF advocates that the Court should ignore the entirety of the
legislatively-mandated E-Flow scheme in favor of an isolated reading of
the text of one statute (§ 11.152) without regard to its context. NWF Resp.
at 32-34. No canon of statutory construction supports this reading, which
would subvert the Legislature’s directive. A plain-language argument
that requires the Court to ignore whole swaths of the statute and rules is
hardly faithful to the text.
Legislative intent could not be plainer. The Legislature charged the
Commission to “apply any adopted flow standards . . . instead of
considering . . .” factors including the habitat assessment in Section
11.152. Tex. Water Code § 11.147(e-3), referring to Subsection (e), which
requires consideration of an assessment under Section 11.152. The
4 phrase “instead of” is how we know the Legislature intended for E-Flows
standards to stand “in place of” or “as a substitute for or alternative to”
Section 11.152.
NWF explains this away by suggesting the text means the
Commission must still conduct a habitat assessment under Section
11.152, just for another purpose (the purpose of assessing impacts other
than environmental flows to terrestrial wildlife habitat). Resp. at 52. But
there are two obvious problems with this interpretation. First,
environmental flows are the name of the game in Chapter 11. The
statute’s whole aim is ensuring water flow for various purposes, including
ecological purposes, so to interpret Section 11.152 as seeking to
accomplish something outside this context makes little sense. Second,
people use the phrase “instead of” when they are replacing one thing with
another, so it would be strange for the Legislature to choose this phrase
when it really intended for the Commission to conduct a habitat
assessment under Section 11.152 in addition to applying the E-Flows
standards. TJFA, L.P. v. Tex. Comm’n on Envtl. Quality, 632 S.W.3d 660,
667 (Tex. App.—Austin 2021, pet. denied) (“Our goal in construing a
statute is to ascertain and give effect to the legislature’s intent, looking
5 first to the plain and common meaning of the statute’s words.”). NWF
points to no preamble or legislative history that hints even vaguely at its
alternative construction. There is no need to use pretzel logic to divine
the meaning of text as straightforward as this.
NWF’s attempt to graft Section 11.152’s habitat mitigation rules,
30 Tex. Admin. Code § 297.53, onto the off-channel reservoirs associated
with this project similarly fails because it conflicts with the plain
language. These rules are specifically excluded for new water rights
applications in E-Flows basins:
“For purposes of determining any environmental flow conditions in any water right permit application to which this chapter applies that are necessary to maintain: …fish and wildlife habitats…the commission shall apply any applicable environmental flow standard, including any environmental flow set-aside, adopted in this chapter, instead of considering the factors specified in Texas Water Code, §11.147(b) - (e) and §§297.53-297.56 of this title . . .”
30 Tex. Admin. Code § 298.15(b) (emphasis added). Thus, even if NWF is
right that Section 11.152 could conceivably apply to some hypothetical
reservoir, it does not apply to this one, and neither do the habitat
mitigation rules at 30 Tex. Admin. Code § 297.53.
This is doubly true of the rule governing wetlands that NWF cites
in arguing Section 11.152 applies even when E-Flows are adopted
6 (contrary to the text). Resp. at 55. 30 Tex. Admin. Code § 297.53(f) applies
“in case of unavoidable wetlands loss” resulting from the appropriation
of state water. The references to riparian and terrestrial habitats in these
subsections are made in the context of restricting flow-related effects, not
a general duty to assess non-flow-related effects to terrestrial habitat in
every appropriation of state water. Regardless, there is no allegation of
loss of wetlands in this case.
Finally, to the extent NWF’s quarrel lies with the environmental
flows scheme as a whole, that ship has sailed. NWF knew environmental
flow standards were being adopted for the Guadalupe River—it
submitted comments. See e.g., 37 Tex. Reg. 6629 at 6642 (summarizing
one of NWF’s comments on the proposed rule). But NWF did not
challenge ether the adoption of rules to implement Section 11.147(e-3) or
the E-Flows standards for the Guadalupe River and it cannot do so here.
II. GBRA’s Application provided the Commission with enough information to make the requisite determinations for issuance of the permit under Chapter 11 of the Texas Water Code.
GBRA’s Application complies with the statute—it “conforms to the
requirements prescribed by this chapter” to “state the location and
describe the proposed facilities.” Tex. Water Code §§ 11.134; 11.124(a)(5).
7 The Application identifies the beginning and end points of the diversion
reach where the diversion points will be located and the county location
of the off-channel reservoir—these are locations. RR, 2-B AR 214 at
PDF 8; see also RR, 2-C AR 262 at 1. There is no support in the statute
for NWF’s insistence that the location “must be made with specificity,”
by which NWF apparently means the location must be specified in NWF’s
preferred terms. Resp. at 58. The Legislature chose to use general
language for this provision even if NWF wishes it had done otherwise—
the statute does not define “location” and neither do TCEQ’s rules.
Even more unconvincing is the suggestion that failure to comply
with the application rules should mandate denial of a water right
application. Resp. at 60. Denial is not a consequence that is explicit in
the regulatory text, nor is it “logically necessary to accomplish the [rule’s]
purpose.” Image API, LLC v. Young, 691 S.W.3d 831, 843 (Tex. 2024). To
the contrary, the rules prescribe a process for dealing with “deficient”
applications that gives the agency a menu of options aside from denial.
See, e.g., 30 Tex. Admin. Code §§ 295.2(a) (Applicants will be notified if
additional information is needed; Applicants should confer with agency
staff on any questions concerning preparation of the application; staff
8 may make non-substantive changes to any documents submitted by the
applicant with written or verbal approval of the applicant); 30 Tex.
Admin. Code § 281.4(7) (requiring applications to include “any other
information as the executive director or the commission may reasonably
require.”). The regulations read as directives for applicants whose
purpose is to ensure TCEQ gets all the information it needs to make
decisions. And this is consistent with the stated goal of the rules to
“establish a general policy for the processing of applications for permits,
licenses, and other types of approvals in order to achieve the greatest
efficiency and effectiveness possible.” 30 Tex. Admin. Code § 281.1
(emphasis added). In other words, the application rules are “included for
the purpose of promoting the proper, orderly and prompt conduct of
business,” and therefore should not be regarded as mandatory. AC
Interests, L.P. v. Tex. Comm’n on Envtl. Quality, 543 S.W.3d 703, 709
(Tex. 2018) (quoting Chisolm v. Bewley Mills, 287 S.W.3d 943, 945 (Tex.
1956)). Interpreting the rules to mandate denial for a perceived technical
deficiency as NWF proposes (Resp. at 60) is unreasonable and would
undermine their purpose entirely.
Because the adopted environmental flow regime for the Guadalupe
9 River already involved a comprehensive analysis of the seasonal flow
necessary to sustain life in each segment of the basin, 2 TCEQ was able to
use the diversion segment location description and the accompanying
maps in GBRA’s Application to make a complete water availability and
environmental flow determination under Chapter 11. RR, 2-C AR 262;
RR, 2-C AR 264; RR, 2-C AR 258 at 8:8-33—9:1-33, 12:1-28, 13:1-30; RR,
2-C AR 262 (Water Availability Analysis).
This is why NWF is also mistaken that TCEQ needed an exact
location of the off-channel reservoirs planned for development in the
future to make its determination. Resp. at 59. The application rules
ensure TCEQ has what it needs to assess the impacts of diverting water
from a water course. What happens with that water in a case where an
off-channel reservoir is planned is not relevant to flow analysis and thus
not relevant to this permit. Moreover, any potential future proceedings
regarding a planned off-channel reservoir may be governed by other
programs. NWF may well have opportunities to participate in future
required authorization processes. See RR, 2-C AR 258 at 27:26-31. For
example, state programs regarding dam safety and federal
2 30 Tex. Admin. Code § 298.380(c); see also 37 Tex. Reg. at 6636-37.
10 authorizations are both likely to be implicated. See, e.g., 30 Tex. Admin.
Code Ch. 299 (Dams and Reservoirs); 33 U.S.C. §§ 1311, 1344 (governing
point-source discharges and dredging and filling activities in navigable
streams administered by the U.S. Army Corps of Engineers and the U.S.
Environmental Protection Agency). But NWF cannot inject its
anticipatory concerns that have nothing to do with environmental flows
here.
The application rules achieved their purpose, allowing TCEQ to
conduct its technical review efficiently and effectively to evaluate
whether GBRA’s Application met statutory requirements. Tex. Water
Code § 11.134; 11.124(a)(5). To give effect to NWF’s preferred reading
here would serve no purpose but to undermine the Chapter 11 process.
III. None of the errors alleged in NWF’s suit for judicial review of the Commission’s Order prejudiced NWF’s substantial rights.
Even if the district court had correctly applied Chapter 11’s
requirements in its review, it erred when it reversed and remanded. It is
not enough for NWF to allege that general issuance of the permit harms
its members. To merit reversal and remand under the Administrative
Procedures Act, NWF must show that its “substantial rights . . . have
11 been prejudiced because the administrative findings, inferences,
conclusions, or decisions” of the Commission are in error. Tex. Gov’t Code
§ 2001.174 (emphasis added). NWF fails to do this—it cannot draw a
connection between its prejudiced rights and the errors it complains
about, so reversal and remand are not available. Id.
NWF’s points of error all relate to environmental impacts to fish
and wildlife habitats at the diversion points or off-channel reservoir
locations in Gonzales County. CR 155-56. But the rights NWF alleges
have been prejudiced are all related to freshwater inflows into San
Antonio Bay, nearly 100 miles south of Gonzales County. RR, 1 AR 67 at
1-2; RR, 5 AR 292 at PDF 36 (NWF Comments); RR, 1 AR 64 at 1-2; RR,
1 AR 67 at 1-2; CR 7. Specifically, NWF’s members claim that their
seafood companies will suffer economically from reduced freshwater
inflows into San Antonio Bay. Id. The Commission found otherwise.3 But
even if the Commission were to address each of NWF’s points of error on
remand (i.e., even if the agency conducted a site-specific habitat
assessment and ignored the applicable environmental flow standards for
3 AR 182 at FOF 81 (finding the Permit “properly applies and implements” the “freshwater inflow standards for the San Antonio Bay” and 83 (“GBRA’s proposed diversion will not impair the inflow regimes into San Antonio Bay.”).
12 this basin, 4 even if the application pinpointed exact diversion and
reservoir locations, and even if it provided non-jurisdictional pre-
application notification to Gonzales County officials), these changes
would only have local effects in and around Gonzalez County where the
diversion points are to be located. The freshwater inflows to San Antonio
Bay would be the same. Under NWF’s reasoning, its substantial rights
would be prejudiced any time any water use permit was granted in this
basin simply because, for NWF’s members, the more water the better.
NWF Br. 19. With this unremarkable observation, NWF is simply
highlighting the need for managing state water. The Legislature and the
Commission agree—that is why we are here. But NWF has not
established how its substantial rights are prejudiced by TCEQ’s alleged
errors. See City of Schertz v. Tex. Comm’n on Envtl. Quality, 653 S.W.3d
468, 474 (Tex. App.—Amarillo 2022, no pet.) (failure to argue how a
plaintiff’s substantial rights have been prejudiced on account of the
Commission’s findings and conclusions “militates against reversal of the
district court’s judgment even if the Commission’s findings and
conclusions are unsupported.”); citing Dyer v. Tex. Comm’n on Envtl.
4 Compare Tex. Water Code § 11.152 with Tex. Water Code § 11.147(e-3).
13 Quality, 646 S.W.3d 498, 514 (Tex. 2022). Reversal and remand are not
available because they would serve no purpose here.
In its response, NWF conflates the standards for harm related to
standing with what is required to show reversible error under the
Administrative Procedure Act. NWF Resp. at 17-18, 21-30. These are
separate concepts and should not be collapsed. TCEQ is not challenging
NWF’s status as a party “aggrieved” by the permitting decision for
purposes of establishing standing under Texas Government Code
§ 2001.171 (i.e., whether the Court has jurisdiction to hear NWF’s suit).
Instead, the Commission is raising a legal question about the available
remedy—whether the district court can reverse and remand under the
APA when no substantial rights are affected by the alleged errors.
Because NWF cannot establish that its economic interest in freshwater
inflows were impacted by the specific errors it alleges, the district court
must be overturned.
CONCLUSION AND PRAYER
NWF has not shown any reversible errors in TCEQ’s order granting
GBRA’s water use permit. Accordingly, TCEQ respectfully requests that
14 the Court reverse the district court’s judgment and render judgment
affirming TCEQ’s order in all respects.
Respectfully submitted,
KEN PAXTON Attorney General of Texas
BRENT WEBSTER First Assistant Attorney General
RALPH MOLINA Deputy First Assistant Attorney General
JAMES LLOYD Deputy Attorney General for Civil Litigation
KELLIE E. BILLINGS-RAY Chief, Environmental Protection Division
/s/ Katie B. Hobson KATIE B. HOBSON Assistant Attorney General State Bar No. 24082680 katie.hobson@oag.texas.gov
OFFICE OF THE ATTORNEY GENERAL Environmental Protection Division P.O. Box 12548, MC 066 Austin, Texas 78711-2548 Phone: (512) 475-4019 Fax: (512) 320-0911
Counsel for Appellant the Texas Commission on Environmental Quality
15 CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the type-volume limitation of Texas Rule of Appellate Procedure 9.4(i)(2)(B), because it contains 2,854 words, excluding the parts of the brief exempted by Rule 9.4(i)(1). This is a computer-generated document created in Microsoft Word.
/s/ Katie B. Hobson KATIE B. HOBSON
16 CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of January 2025, a true and correct copy of the foregoing TCEQ’s Brief on the Merits has been served upon the parties listed below via electronic service or email.
Marisa Perales marisa@txenvirolaw.com PERALES, ALLMON & ICE, P.C. 1206 San Antonio Street Austin, Texas 78701
Attorney for National Wildlife Federation
Samia Broadaway samia.broadaway@bakerbotts.com John Ormiston john.ormiston@bakerbotts.com Molly Cagle molly.cagle@bakerbotts.com BAKER BOTTS, L.L.P. 401 S. First Street, Suite 1300 Austin, Texas 78704-1296
Attorneys for Guadalupe-Blanco River Authority
17 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Laura Courtney on behalf of Katie Hobson Bar No. 24082680 laura.courtney@oag.texas.gov Envelope ID: 96705369 Filing Code Description: Other Brief Filing Description: Reply Brief of Appellant, The Texas Commission on Environmental Quality Status as of 1/28/2025 4:10 PM CST
Associated Case Party: Guadalupe-Blanco River Authority
Name BarNumber Email TimestampSubmitted Status
Macey ReasonerStokes macey.stokes@bakerbotts.com 1/28/2025 4:00:08 PM SENT
Molly Cagle 3591800 molly.cagle@bakerbotts.com 1/28/2025 4:00:08 PM SENT
Samia Broadaway 24088322 samia.broadaway@bakerbotts.com 1/28/2025 4:00:08 PM SENT
John Ormiston 24121040 john.ormiston@bakerbotts.com 1/28/2025 4:00:08 PM SENT
Associated Case Party: National Wildlife Federation
Marisa Perales 24002750 marisa@txenvirolaw.com 1/28/2025 4:00:08 PM SENT
Claire Hamerlinck claire@txenvirolaw.com 1/28/2025 4:00:08 PM SENT
Associated Case Party: Texas Commission on Environmental Quality
Katie B.Hobson katie.hobson@oag.texas.gov 1/28/2025 4:00:08 PM SENT
Case Contacts
Laura Courtney laura.courtney@oag.texas.gov 1/28/2025 4:00:08 PM SENT