Upper Trinity Regional Water District v. National Wildlife Federation

514 S.W.3d 855, 2017 WL 372166, 2017 Tex. App. LEXIS 712
CourtCourt of Appeals of Texas
DecidedJanuary 26, 2017
DocketNO. 01-15-00374-CV
StatusPublished
Cited by7 cases

This text of 514 S.W.3d 855 (Upper Trinity Regional Water District v. National Wildlife Federation) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Upper Trinity Regional Water District v. National Wildlife Federation, 514 S.W.3d 855, 2017 WL 372166, 2017 Tex. App. LEXIS 712 (Tex. Ct. App. 2017).

Opinion

OPINION

Rebeca Huddle, Justice

Upper Trinity Regional Water District and the Texas Commission on Environmental Quality (TCEQ) appeal the district court’s judgment reversing and remanding a portion of the TCEQ’s order granting Upper Trinity a permit for an interbasin water transfer. Appellee National Wildlife Federation (NWF) participated in a contested case hearing protesting the permit, and, following TCEQ’s grant of the permit, appealed to the district court. The district court found that TCEQ erred in finding that Upper Trinity had developed and implemented a water conservation plan that would result in the highest practicable levels of water conservation and efficiency achievable within its jurisdiction, as required by section 11.085(/, )(2) of the Water Code. Because substantial evidence supports TCEQ’s decision, we reverse the district court’s judgment and affirm the TCEQ’s order.

Background

Upper Trinity is a wholesale water provider that serves approximately 30 cities and utilities in the northern part of Texas. Upper Trinity’s customers buy water from it and resell the water to retail customers, which include businesses and homeowners.

Upper Trinity applies for an interbasin water transfer permit

In 2003, Upper Trinity applied to the TCEQ for a permit for the Lake Ralph Hall project. The project involved building a reservoir and transferring water from [860]*860the Sulphur River Basin to the Trinity River Basin. TCEQ conducted a technical review and in 2011, issued a draft permit. TCEQ subsequently considered requests for a contested case hearing from opponents of the application, granted 10 requests, and referred the application to the State Office of Administrative Hearing (SOAH).

The contested case hearing and TCEQ’s order

In January 2013, the contested case hearing was held before two SOAH administrative law judges (ALJs). TCEQ, Upper Trinity, NWF, and several other entities protesting the permit participated and presented evidence. The ALJs heard live testimony, received exhibits, and considered pre-filed testimony. The ALJs issued a Proposal for Decision recommending that TCEQ grant the application and issue the permit because Upper Trinity had met all statutory and regulatory requirements.

NWF filed exceptions to the Proposal, and Upper Trinity and TCEQ filed responses. TCEQ reviewed the Proposal, exceptions, and responses, and it granted the permit in an order setting forth 516 findings of fact and 33 conclusions of law. NWF filed a motion for rehearing on the grounds that Upper Trinity did not meet its burden to develop and implement a water conservation plan that complied with section 11.085(0(2). The motion for rehearing was overruled by operation of law.

NWF appeals TCEQ’s order

NWF sued TCEQ in district court challenging the following three findings in TCEQ’s order relating to Upper Trinity’s water conservation plan:

• that the plan met the requirements of Water Code section 11.1085(Z )(2);
• that the plan met the requirements of Administrative Code section 288.5(1)(H); and
• that the plan’s goals were reasonable and proposed measures were adequate.

Upper Trinity intervened as a party-defendant. The parties filed briefs and admitted the administrative record for the district court’s review. The district court found that TCEQ erred in concluding that Upper Trinity’s conservation plan met the requirements of section 11.085(2 )(2) and entered judgment reversing only that portion of TCEQ’s 49-page order. The district court found that NWF’s other claims were moot in light of the remand. TCEQ and Upper Trinity appealed.1

Discussion

TCEQ and Upper Trinity contend that the district court’s order should be reversed and TCEQ’s order affirmed because substantial evidence supports TCEQ’s finding that Upper Trinity complied with Water Code section 11.085(2 )(2) by developing and implementing a water conservation plan that would result in the highest practicable levels of water conservation and efficiency achievable within its jurisdiction. NWF responds that the district court’s order should be affirmed because TCEQ misinterpreted the statutory requirement, relied upon improper sources to make its determination, and its decision is contravened by conflicting evidence.

A. Standard of Review

On appeal, we consider whether substantial evidence supports TCEQ’s de-[861]*861cisión to approve Upper Trinity’s water conservation plan. Tex. Gov’t Code § 2001.174. The substantial evidence standard requires that we reverse or remand a case for further proceedings only “if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions” are:

(A) in violation of a constitutional or statutory provision;
(B) in excess of TCEQ’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Id. “An agency’s decision is arbitrary or ... an abuse of discretion if the agency: (1) failed to consider a factor the legislature directs it to consider; (2) considers an irrelevant factor; or (3) weighs only relevant factors that the legislature directs it to consider but still reaches a completely unreasonable result.” City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179,184 (Tex. 1994).

In applying the substantial evidence standard of review, we may not substitute our judgment for that of TCEQ on the weight of the evidence on questions committed to its discretion. Tex. Gov’t Code § 2001.174; Míreles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). To the extent the dispute concerns whether the decision to grant the permit was supported by reliable and probative evidence, the issue for us is not whether TCEQ’s decision was correct, but only whether the record demonstrates some reasonable basis for TCEQ’s decision. Tex. Gov’t Code § 2001.174(2)(E); Míreles, 9 S.W.3d at 131; see Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452 (Tex. 1984) (“The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency.”). TCEQ “determines the meaning, weight, and credibility to assign conflicting evidence.” See Cty. of Reeves v. Tex. Comm’n on Envtl. Quality, 266 S.W.3d 516, 528 (Tex. App.Austin 2008, no pet.).

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514 S.W.3d 855, 2017 WL 372166, 2017 Tex. App. LEXIS 712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upper-trinity-regional-water-district-v-national-wildlife-federation-texapp-2017.