ACCEPTED
03-14-00416-CV
4941122
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/17/2015 4:32:14 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00416-CV
FILED IN
IN THE C OURT OF A PPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
F OR THE T HIRD JUDICIAL D ISTRICT OF T EXAS
4/17/2015 4:32:14 PM
AT A USTIN JEFFREY D. KYLE
______________________________________ Clerk
B RADLEY B. W ARE ,
Appellant,
v.
T EXAS C OMMISSION ON E NVIRONMENTAL Q UALITY ,
Appellee.
______________________________________
Appeal from the 53rd Judicial District Court
Travis County, Texas
Cause No. D-1-GN-10-002342
______________________________________
B RIEF OF A PPELLEE
T EXAS C OMMISSION ON E NVIRONMENTAL Q UALITY
______________________________________
KEN PAXTON JON NIERMANN
Attorney General of Texas Chief, Environmental Protection Div.
CHARLES E. ROY LINDA B. SECORD
First Assistant Attorney General Assistant Attorney General
State Bar No. 17973400
JAMES E. DAVIS Linda.Secord@texasattorneygeneral.gov
Deputy Attorney General for
Civil Litigation
April 17, 2015
TABLE OF CONTENTS
Page
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I. REPLY POINT PERTAINING TO ALL OF WARE’S POINTS OF
ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ware’s case is tainted by false assumptions. His permit is limited to a
term of years, but he complains about priority dates as if it were a
perpetual right. He diverts water from a single point far upriver, but he
complains about return flows as if he should have water that is only fully
available where the Brazos meets the Gulf of Mexico. Resting on these
false premises, his entire argument is fatally flawed... . . . . . . . . . . . . . . . . . 8
A. Term permits are not permanent water rights.. . . . . . . . . . . . . . . . . . . 8
B. A term permit is based on marginal water supplies not in use or
contemplated for near-term use by permanent water rights
holders.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. No one has a vested right to the issuance of a term permit or a
renewal of a term permit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
D. The priority dates for term permits are different from those for
permanent water rights... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
E. Given his circumstances, the BRA return flows are just not
available to Ware.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ii
F. Ware’s interpretation of §§ 11.1381 and 11.134 is incorrect.. . . . . . 16
G. Ware’s false premises are fatal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
II. REPLY TO WARE’S POINT OF ERROR NO. 1. . . . . . . . . . . . . . . . . . . . 17
A. There is no merit to Ware’s argument that he is entitled to return
flows... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
B. There is more than ample support for TCEQ’s analysis in this
case... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. Agency experts did not provide contrary or improper evidence... . . 23
III. REPLY TO WARE’S POINTS OF ERROR NOS. 2 AND 5. . . . . . . . . . . 25
A. In attacking TCEQ’s findings, Ware misconstrues Tex. Water
Code § 11.046(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. The broader statutory scheme confirms that Ware’s interpretation
of Water Code § 11.046(c) is incorrect.. . . . . . . . . . . . . . . . . . . . . . . 28
C. Ware has misinterpreted the Water Code, but even if he were
right, the proper interpretation of § 11.1046(c) is not dispositive
here. Ware’s renewal was denied based on his location; the order
can and should be affirmed on that basis.. . . . . . . . . . . . . . . . . . . . . 30
IV. REPLY TO WARE'S POINT OF ERROR NO. 3. . . . . . . . . . . . . . . . . . . . 31
A. BRA withdrew its protest of Ware’s renewal application, but that
did not make water available for Ware.. . . . . . . . . . . . . . . . . . . . . . . 31
B. Even if Ware were right that he should have been given a 1997
priority date, it would not matter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
C. Ware’s cancellation theory is wrong.. . . . . . . . . . . . . . . . . . . . . . . . . 32
iii
V. REPLY TO WARE’S POINT OF ERROR NO. 4. . . . . . . . . . . . . . . . . . . . 34
VI. REPLY TO WARE’S POINT OF ERROR NO. 6. . . . . . . . . . . . . . . . . . . . 37
VII. CONCLUSION: NOT ONLY ARE WARE’S LEGAL THEORIES
WRONG, THE EQUITIES DO NOT FAVOR HIM EITHER.. . . . . . . . . . 38
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
iv
INDEX OF AUTHORITIES
Cases Page
Central Power & Light Co. v. PUC,
36 S.W.3d 547 (Tex. App.–Austin 2000, pet. denied). . . . . . . . . . . . . . . . . . 5
City of Corpus Christi v. Nueces Co. Water Control. & Imp. Dist. No. 3,
540 S.W.2d 357 (Tex. Civ. App.–Corpus Christi 1976,
writ ref’d., n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Consumers Water, Inc. v. PUC,
774 S.W.2d 719 (Tex. App.–Austin 1989, no writ). . . . . . . . . . . . . . . . . . . . 5
H.G. Sledge, Inc. v. Prospective Investment and Trading Co., Ltd.,
36 S.W.3d 597 (Tex. App.–Austin 2000, pet. denied). . . . . . . . . . . . . . . . . . 4
Lower Colorado River Auth. v. Tex. Dep’t of Water Res.,
638 S.W.2d 557 (Tex. App.–Austin 1982, rev’d. on other grounds,
689 S.W. 873 (Tex. 1984)). . . . . . . . . . . . . . . . . . . . 8, 10, 11, 12, 27, passim
Meier Infiniti Co. v. Motor Vehicle Board,
918 S.W.2d 95 (Tex. App.–Austin 1996, writ denied).. . . . . . . . . . . . . . . . . 5
Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm’n,
809 S.W.2d 268 (Tex. App.–Austin 1991, writ denied).. . . . . . . . . . . . . . . . 5
Tex. Water Rights Comm’n v. Wright,
464 S.W.2d 642 (Tex. 1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Statutes
Tex. Gov’t. Code
§ 2001.060.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
§ 2001.175(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
§ 2001.175(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
v
Statutes (cont’d) Page
Tex. Water Code
§ 11.022. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
§ 11.025. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
§ 11.026. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
§ 11.027. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
§ 11.042. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
§ 11.042(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
§ 11.042(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
§ 11.046. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28, 29
§ 11.046(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
§ 11.046(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
§ 11.046(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 27, 28, 30
§ 11.046(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
§ 11.046(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
§ 11.121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8,
§ 11.134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 16
§ 11.134(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
§ 11.134(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16, 17, 25, 31
§ 11.134(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
§ 11.1351. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§ 11.1381. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11, 16, 17, passim
§ 11.1381(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 16
§ 11.1381(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
§ 11.146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
§ 11.147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§ 11.1471. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§ 11.1491. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§ 11.150. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§ 11.151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§ 11.152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§ 11.171-.186.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
§ 11.172. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33
vi
Statutes (cont’d) Page
§ 16.012(g)-(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Rules
30 Tex. Admin. Code
§ 297.19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
§ 297.19(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
§ 297.42(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Other References
Act of Mar. 19, 1917, 35th Leg., R.S., ch. 88, § 72,
1917 Gen. Laws 211. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Act of May 21, 1987, 70th Leg., R.S., ch. 405, § 1,
1987 Tex. Gen. Laws 1932. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Act of June 1, 1997, 75th Leg., R.S., ch. 1010, § 2.06,
1997 Tex. Gen. Laws 3610. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Act of June 1, 1997, 75th Leg., R.S., ch. 1010, § 2.07,
1997 Tex. Gen. Laws 3610. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26
Martin Hubert and Bob Bullock,
Senate Bill 1, the First Big and Bold Step Toward Meeting Texas’s
Future Water Needs, 30 Texas Tech L. Rev. 53 (1999).. . . . . . . . . . . . . . . 29
vii
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary. This case lends itself to submission on briefs
and a Memorandum Opinion.
Throughout the life of this case, from the SOAH hearing to the Commissioner’s
consideration of SOAH’s PFD to the district court, Appellant Ware has made the
same fundamentally unsound argument based on a misunderstanding of the type of
permit that he holds. No tribunal has agreed with Ware. Having lost at every level,
he now presents a third round of the same briefing. Appellee Texas Commission on
Environmental Quality submits that these written materials amply illustrate the flaws
in Ware’s case so that the Court may decide the issues without oral argument.
The Commission welcomes oral argument when the Court deems it useful and
asks to be allowed to participate should the Court grant Ware’s request.
viii
No. 03-14-00416-CV
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN
______________________________________
BRADLEY B. WARE,
Appellant,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,
Appellee.
______________________________________
Appeal from the 53rd Judicial District Court
Travis County, Texas
Cause No. D-1-GN-10-002342
______________________________________
BRIEF OF APPELLEE
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
______________________________________
TO THE HONORABLE COURT OF APPEALS:
Appellant Bradley B. Ware (“Ware”) appeals the decision of Appellee the
Texas Commission on Environmental Quality (“Commission” or “TCEQ”)1 denying
1
References to the TCEQ in this brief also refer to its predecessor agencies as applicable for
the timeframe being discussed. These would include the Texas Board of Water Engineers, the Texas
Water Commission, the Texas Water Rights Commission, the Texas Department of Water
Resources, and the Texas Natural Resource Conservation Commission.
1
renewal of his 1997 permit allowing him to divert state water for a term of ten years.
The district court order affirmed TCEQ’s decision; this Court should affirm as well.
STATEMENT OF FACTS
In 1997, Ware was issued term Permit No. 5594, which authorized him to
divert 130 acre–feet of water per year from the Lampasas River in Bell County,
upstream of Stillhouse Hollow Reservoir.2 This permit was for a “run of the river”
right. That means that the permit did not authorize Ware to store water, e.g., in wetter
times for use in drier times. Instead, Ware was authorized to divert water directly out
of the Lampassas River and use it to irrigate.3
The 1997 Permit No. 5594 contains a special condition providing that it was
to become null and void on November 7, 2007, unless Ware applied for an extension
prior to that time and the extension was subsequently granted.4 On March 20, 2006,
he filed an application to renew or in the alternative to convert his permit to a
2
A copy of the permit is attached to Ware’s application, both of which were introduced into
evidence in the administrative hearing as Applicant’s Exhibit No. 2. See Administrative Record
(“AR”) Vol. 5, Item No. App 2. A copy of Permit No. 5594 is attached at Appendix Tab A.
3
Id. No storage is authorized in the permit and TCEQ authorization to store water is
required under Tex. Water Code § 11.121. A copy of the statutes cited in this brief are at Appendix
Tab D.
4
See Appendix Tab A (Permit No. 5594, Special Condition 3.b., p. 2).
2
permanent water right.5 The staff of the TCEQ Executive Director (“ED”) reviewed
Ware’s application using the Water Availability Model for the Brazos River Basin for
current conditions, i.e., for water availability (including all water use and return
flows) as of 2006, and determined that there was not enough water available to grant
the application for either a permanent or a term permit.6 The ED recommended denial
and the matter was heard in an evidentiary hearing conducted by a SOAH
Administrative Law Judge (“ALJ”)7 who issued a Proposal for Decision (“PFD”)
recommending denial.8 The TCEQ Commissioners denied Ware’s application by
order dated April 23, 2010.9 The district court affirmed the agency’s decision in an
order issued June 11, 2014.10
STANDARD OF REVIEW
Ware’s brief lacks a statement of the standard of review but his argument
repeatedly focuses on a lack of substantial evidence to support the order or on
5
AR, Vol. 1, Item No. 1E (letter from Kathy Hopkins, TCEQ Project Manager, to Bradley
Ware).
6
AR, Vol 5, Exhibit App. 47 (Water Availability Review Memorandum); Testimony.of
Jeffrey Thomas, AR Vol. 7, (Transcript Vol.1), p. 82.
7
See Transcripts, AR Vol. 7 (October 28, 2009) and Vol. 8 (October 29, 2009).
8
See PFD, pp. 28–29, AR, Vol. 4, Item No. 58A. A copy of the PFD is at Appendix Tab B.
9
AR, Vol. 4, Item No. 64 (TCEQ’s Final Order). A copy is at Appendix Tab C.
10
CR at 446.
3
references to the contents of the record to support his claims. He also frequently
asserts that the agency decision is arbitrary and capricious, an abuse of discretion, and
tainted by unlawful procedure and an incorrect interpretation of the Water Code. All
of this indicates Ware’s recognition that because this is a suit for judicial review of
a TCEQ order issued after a contested case hearing at the State Office of
Administrative Hearings (“SOAH”), the substantial evidence standard of review
applies.
Reflecting our constitutional commitment to keeping the powers of three co-
equal branches of government separate, “substantial evidence review” is a standard
of review that governs the relationship between the executive branch’s state agencies
and the judiciary. Under this standard of review, agency orders are deemed valid,
findings of fact are reviewed for support by substantial evidence, legal conclusions
are reviewed for errors of law, and the proper test is whether the evidence in its
entirety is such that reasonable minds could have reached the conclusion that the
agency must have reached to justify its decision or whether the agency acted
arbitrarily and without regard to the facts.11 As to what the facts are, the agency is the
11
H.G. Sledge, Inc. v. Prospective Investment and Trading Co., Ltd., 36 S.W.3d 597, 602
(Tex. App.—Austin 2000, pet. denied).
4
sole judge of the weight of the evidence and the credibility of the witnesses.12
Challenges to agency orders often contain “arbitrary and capricious” claims.
This Court has explained that agency actions challenged as arbitrary and capricious
are reviewed for abuse of discretion.13 Thus, in performing substantial evidence
review of an agency decision, reviewing courts often use the abuse of discretion
standard to determine whether an agency committed error. Under the abuse of
discretion standard, a court (or agency) abuses its discretion if it acts without
reference to any guiding rules or principles.14
Courts conducting substantial evidence review do not second-guess an agency.
This Court has long held that it is the agency that determines which factors to
consider, how much weight to give each, and how to weigh conflicting evidence.15
In this case, Ware often tries to avoid the effect of the substantial evidence
standard of review by describing the agency as misinterpreting the Water Code or
using an unlawful procedure. Even if he were right, these complaints are just one
12
Central Power & Light Co. v. PUC, 36 S.W.3d 547, 561 (Tex. App.—Austin 2000, pet.
denied).
13
Consumers Water, Inc. v. PUC, 774 S.W.2d 719, 721 (Tex. App.—Austin 1989, no writ).
14
Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm’n, 809 S.W.2d 268, 270 (Tex.
App.—Austin 1991, writ denied).
15
Meier Infiniti Co. v. Motor Vehicle Board, 918 S.W.2d 95, 100 (Tex. App.—Austin 1996,
writ denied) (“[t]his Court will neither substitute its own judgment as to which factors the agency
should consider to be the most important nor make a de novo determination of good cause.”).
5
type of error that an agency can commit. Allegations of such error fit within the
substantial evidence standard of review. Indeed, the APA specifically mentions
errors of law and unlawful procedure in its list of reversible error.
This case does not require the Court to test the limits of this standard of review.
The record amply supports the order. The agency’s legal conclusions are correct and
in accord with the judicial and legislative directives providing that term permits, such
as Ware’s, cannot infringe on permanent water rights. Further, no unlawful
procedures were used, nor any constitutional or statutory provisions violated.
SUMMARY OF THE ARGUMENT
Virtually all of Ware’s arguments flow from two broad complaints: (1) that
TCEQ analyzed the amount of water available for the renewal of his term water rights
permit based on what he contends is an incorrect priority date; and (2) there is
additional water in the Brazos River Basin that could have been allocated to his
application. For both of these complaints, Ware compares his application with that
of the Brazos River Authority (“BRA”), who holds a permanent water right and
operates a system of reservoirs throughout the Brazos River basin.
Ware holds a specialized type of water use permit known as a “term” permit.
His 1997 term permit had a renewal provision but could not be renewed because
agency staff concluded—using a legislatively mandated computer model as well as
6
information and theories put forth by Ware—that there was not enough water
available at his diversion point to grant him another term. In urging that there was
enough water, Ware insists that BRA’s application indicated that there was water in
the form of “return flows” that could and should have been allocated to Ware under
a “priority date” senior to BRA. These aspects of water rights—term permits, their
priority dates, and return flows—are the core of this case.
Legally, his arguments are based on the flawed assumption that the law
requires TCEQ to grant a permit or renewal under the conditions he describes in his
brief. The law does no such thing. He also misapprehends the legal nature of a term
permit as compared to the nature of a permanent water right, and so he misconstrues
what his rights are and what the significance of a priority date is for a term permit.
Finally, he incorrectly views the return flows associated with BRA’s application (for
want of a better term, “BRA’s return flows”) as available to him. Ware makes this
mistake because he fails to appreciate that the circumstances of his water use are very
different from BRA’s.
7
ARGUMENT
I. REPLY POINT PERTAINING TO ALL OF WARE’S POINTS OF ERROR
Ware’s case is tainted by false assumptions. His permit is limited to
a term of years, but he complains about priority dates as if it were
a perpetual right. He diverts water from a single point far upriver,
but he complains about return flows as if he should have water that
is only fully available where the Brazos meets the Gulf of Mexico.
Resting on these false premises, his entire argument is fatally
flawed.
A. Term permits are not permanent water rights.
No one may take, store, or divert State Water (water in rivers, lakes, creeks, or
in the Gulf of Mexico) without authorization from the TCEQ.16 The Water Code
authorizes a number of different types of water rights, including what are called
“permanent water rights”17 and water rights granted under what are called “term
permits.”18
A permanent water right is an incorporeal right to use water.19 The right vests
in the water rights holder to the extent that the holder makes (and continues to make)
16
Tex. Water Code § 11.121. There are exceptions to the requirements of § 11.121, but they
are not applicable to the case at bar.
17
TCEQ derives its general authority to issue water rights permits under Tex. Water Code
§§ 11.022, 11.121, 11.134, and other provisions in Chapter 11 of the Code.
18
Term Permits are authorized under Tex. Water Code § 11.1381.
19
Lower Colorado River Auth. v. Tex. Dep’t of Water Res., 638 S.W.2d 557, 562 (Tex.
App.—Austin 1982), rev’d. on other grounds, 689 S.W.2d 873 (Tex. 1984), (citing Tex. Water
Rights Comm’n v. Wright, 464 S.W.2d 642 (Tex. 1971)).
8
beneficial use of the water in accordance with the terms of the permit.20 It is subject
to forfeiture or cancellation for nonuse.21 It is subject to loss by prescription.22
Nevertheless, to the extent that a permit holder continues to make beneficial use of
the water authorized for a permanent water right, the right continues in effect.23
A term permit, on the other hand, is just what its name implies. It is a right to
use water for a term of years.24 Unlike a permanent water right, a term permit does
not continue in effect so long as the water authorized under the permit continues to
be put to beneficial use. Both Tex. Water Code § 11.1381 and the TCEQ rule
addressing term permits at 30 Tex. Admin. Code § 297.1925 contemplate that term
permits are for a term of years, not a perpetual right. As noted above, Ware’s Permit
No. 5594 stated that it became null and void on a certain date if an application to
20
See Tex. Water Code §§ 11.022, .025, and .026. See also, Wright, 464 S.W.2d at 647–48.
21
See Tex. Water Code § 11.146 (forfeiture for failure to commence construction of
necessary dams and facilities to use the water) and §§ 11.171–.186 (cancellation for nonuse).
22
City of Corpus Christi v. Nueces Co. Water Control. & Improvement Dist. No. 3, 540
S.W.2d 357, 375-76 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d., n.r.e.).
23
See Wright, 464 S.W.2d at 649, where the Texas Supreme Court held permits were “grants
to the permittees of usufructuary rights to the State’s water upon the implied condition subsequent
that the waters would be beneficially used.”
24
Tex. Water Code § 11.1381(a); 30 Tex. Admin. Code § 297.19(a). A copy of the rules
referenced in this brief is at Appendix Tab H.
25
30 Tex. Admin. Code § 297.19. Water Code §§ 11.153–.155 referenced in § 297.19
relate to a specialized use of water under term permits (aquifer storage). These Water Code sections
are not germane to the case at bar.
9
renew was not timely filed and if the renewal was not granted.26
B. A term permit is based on marginal water supplies not in use or
contemplated for near–term use by permanent water rights holders.
In order for TCEQ to grant an application for a permanent water right, TCEQ
must find that there is unappropriated water available in the “source of supply,” i.e.,
in the stream from which the would–be permittee wants to take water.27 In 1984, the
Texas Supreme Court construed that Water Code requirement in Lower Colorado
River Authority. v. Texas Department of Water Resources (also called the “Stacy Dam
case,”).28 In the Stacy Dam case, the Colorado River Municipal Water District
(“CRMWD”) applied for a permit to construct what is now O. H. Ivie Reservoir in
Coleman, Concho, and Runnels Counties. There was insufficient water available in
the Upper Colorado River to permit the reservoir unless TCEQ took into account
water that was permitted to the Lower Colorado River Authority (“LRCA”) but was
not being used by LRCA. TCEQ granted CRMWD’s permit application over
LCRA’s protest and LCRA appealed.
The Texas Supreme Court reversed the agency’s decision and the judgments
of both the district court and the court of civil Appeals. The Court held that TCEQ
26
See Permit No. 5594, Special Condition 3.a , p. 2.
27
See now Tex. Water Code § 11.134(b)(2).
28
689 S.W.2d 873 (Tex. 1984).
10
must take into account the entire amount of water already permitted in the stream
when considering a new application for a water right. TCEQ could not base the new
permanent water right on water that was permitted to others but was not being used.
The Court held that in amending certain water laws, the Legislature had “explicitly
shown its purpose to interdict ‘double permitting’ of water.”29
After the Stacy Dam opinion was issued, the Legislature authorized the
issuance of term permits under what is now codified as Water Code § 11.1381.30 As
noted above, § 11.1381 allows TCEQ—in its discretion—to authorize temporary use
of water that is already permitted to others but is not being used.31 TCEQ witness
Kathy Alexander explained it in her testimony before SOAH in this case:
[A]n appropriative [i.e., permanent] water right is a water right that gets
water that’s never been given to anyone else before. A term water right
is . . . an authorization to use water that we’ve previously given to
someone else which they’re either not using in whole or in part.32
This reflects the language of the applicable TCEQ rule, which provides that TCEQ
may issue a term permit for appropriated water when there is insufficient
29
689 S.W. 2d at 878.
30
Act of May 21, 1987, 70th Leg., R.S., ch. 405, § 1, 1987 Tex. Gen. Laws 1932. A copy
is at Appendix Tab F.
31
Section 11.1381(a) says in part, “The commission may issue permits for a term of years
for use of state water to which a senior water right has not been perfected.” (Emphasis added.)
32
Testimony of Dr. Kathy Alexander. AR. Vol. 8, (Transcript, Vol. 2), p. 345, ln. 6–11.
11
un–appropriated water available to satisfy an application, i.e., for a permanent water
right.33 Clearly, the unused water must be there in order for TCEQ to authorize a term
permit or permit renewal.34 TCEQ does perform an analysis to determine if there is
water available for a term permit. TCEQ staff performs a simulation on its water
availability model, called a “current conditions” run.
C. No one has a vested right to the issuance of a term permit or a renewal of
a term permit.
It is important to note that absolutely nothing in the law mandates the issuance
or renewal of a term permit. The Water Code says TCEQ “may” issue term permits,35
as does the relevant TCEQ rule.36 Term permits are a means for TCEQ to promote
what TCEQ determines to be optimum use of the State’s water resources while
holders of permanent rights develop their rights to use the water. Term permits were
not—and under the Stacy Dam case, they could not be—intended as perpetual grants
of water rights.
33
See 30 Tex. Admin. Code § 297.19(a).
34
Id.
35
Tex. Water Code § 11.1381(a).
36
30 Tex. Admin. Code § 297.19(a).
12
D. The priority dates for term permits are different from those for permanent
water rights.
Ware relies heavily on the doctrine that in water rights, first in time is first in
right. But Ware fails to appreciate that term permits are subordinate to permanent
permits. Water Code § 11.1381(d) states that “[a] permit issued under this section is
subordinate to any senior appropriative water rights.” The term “any” and the use of
the plural “senior appropriative water rights” was best characterized by TCEQ
hydrologist Dr. Kathy Alexander, who testified that a term water right is a second
class permit.37
As discussed more fully below, in determining which water user is “first in
time,” term permits and permanent water rights do not mix. A term permit will trump
other, later, term permits. A permanent water right will trump other, later, permanent
water rights. But a permanent water right will always trump a term permit. Each type
of water right has its own timeline for determining who is first. The priority dates for
term permits such as Ware’s are not dots occurring on the same timeline as for
permanent water rights such as BRA’s.
Ware also fails to understand another aspect of priority dates. While Ware’s
1997 term permit’s priority date clause gives him a first in time right over other term
37
Testimony of Dr. Kathy Alexander. AR Vol. 8, (Transcript, Vol. 2), p. 345, ln.12-15.
13
permits with later priority dates, that 1997 date is only important if a new term is
authorized. Because term permits may only authorize water that is available on the
margins, any renewal request must be judged based on the water available for the
renewal term. In deciding whether to authorize a renewal, TCEQ must look at current
conditions and use a priority date related to the renewal application. Had there been
water available and the renewal issued, Ware would have then benefitted from his
1997 date vis a vis other term permit holders.
Thus, Ware’s insistence on 1997 as his priority date as a date that should have
led to his renewal being granted is wrong on two fronts. That 1997 date does not put
Ware’s term permit date ahead of BRA’s permanent water right nor does it play any
part in determining water availability for the renewal term requested.
E. Given his circumstances, the BRA return flows are just not available to
Ware.
The extra water that Ware claims was available for him was, from a
hydrological and legal standpoint, not really there at his location on the river for
direct diversion from the Lampasas River when and where he wants. Water rights can
seem metaphysical: someone can see water flowing past his farm and be told that he
cannot have it, even if there seems to be plenty. But that is because it may already
have been appropriated to someone else who lives downstream. The Commission is
14
charged with protecting that someone else and with managing all of the water in the
entire basin of a Texas river. It is a delicate balance between protecting permanent
water rights and issuing term permits to avoid waste of water that those permanent
rights holders are not currently using.
In this case, the Commission could not strike the balance in Ware’s favor for
several reasons.38 First, Ware does not create any return flows from the water that he
diverts. Second, he directly diverts from a single point far upstream from the mouth
of the Brazos at the Gulf of Mexico. Third, as a term permit holder, he is subordinate
to all holders of permanent water rights.
These factors all work against Ware’s obtaining any BRA return flows. BRA
manages many reservoirs but Ware has no storage to tap into to cover shortages.
With his upriver diversion point, the BRA return flows (only fully available
hydrologically at the Gulf) are not counted as available to him. And he is subordinate
to BRA and all other permanent water rights holders. As the Commission explained,
the BRA return flows were already reserved for downstream use when Ware sought
renewal and were needed for the overall management of the basin.39
38
Perhaps the clearest explanation of the issues in this case is the ED’s Response to Ware’s
written closing arguments after the close of the SOAH evidentiary hearing. It is Item 57 in Volume
4 of the administrative record; a copy is at Appendix Tab I.
39
AR, Vol. 4, Item No. 57, p. 6.
15
F. Ware’s interpretation of §§ 11.1381 and 11.134 is incorrect.
Both in Point of Error No. 2 and Point of Error No. 5, Ware proceeds from the
false assumption that § 11.1381 relating to term permits and § 11.134 relating to
TCEQ consideration of permit applications somehow require TCEQ to issue permits
if certain conditions are met. A cursory look at the black letter law demonstrates that
this is not the case.
The term permit statute says that TCEQ “may”grant term permits.40 There is
no “shall” associated with the granting of term permits in that section or elsewhere
in the statutes. And, while Ware discusses Water Code § 11.134(b) at length in his
brief, he fails to quote—or even mention – § 11.134(a). Subsection (b), which Ware
does discuss, merely provides that TCEQ may not grant a permit application unless
certain conditions are met. Subsection (a), though, is key to determining what
TCEQ’s obligations are under § 11.134. Subsection (a) indicates that TCEQ has no
obligation to grant Ware’s permit renewal:
(a) After the hearing, the commission shall make a written decision
granting or denying the application. The application may be granted or
denied in whole or in part.41
Indeed, when one considers the entire statutory scheme relating to water rights, it is
40
Tex. Water Code § 11.1381(a).
41
Tex. Water Code § 11.134(a). (Emphasis added.)
16
apparent that the focus is on insuring that the granting of new or amended rights does
not adversely impact senior water rights holders and the environment. Water Code
§ 11.134(b) provides that TCEQ may not grant a permit unless a litany of conditions
listed therein are fulfilled and a litany of other items are considered first. Water Code
§ 11.1381 also contains express prohibitions against granting a term permit if certain
conditions are present. Water Code § 11.1351 expressly allows TCEQ to place
restrictions on permits that are granted. Sections 11.147, 11.1471, 11.1491, 11.150,
and 11.152 all relate to obligations that TCEQ has to protect the environment and
water quality when considering permits. Section 11.151 requires TCEQ to consider
the groundwater impacts of an application.
G. Ware’s false premises are fatal.
Because Ware’s argument is infused by and tainted with misunderstanding of
term permits, priority dates, the availability of return flows, and the TCEQ’s
obligation to grant permits, it should be rejected by this Court as it was by the SOAH
ALJ, the agency, and the district court.
II. REPLY TO WARE’S POINT OF ERROR NO. 1
A. There is no merit to Ware’s argument that he is entitled to return flows.
On pages 13–15 of his brief, Ware argues that a 2008 TCEQ analysis for a
Brazos River Authority (“BRA”) permit application found approximately 74,000
17
acre–feet of return flow water available for appropriation in the Brazos Basin. He
complains that none of these flows were allocated to him, i.e., that TCEQ did not
consider these flows as being available for him to take. TCEQ expert Kathy
Alexander explained why these return flows were not allocated to Ware. Dr.
Alexander testified:
The only water that would be available for Mr. Ware’s application
would be those return flows that could exist or not in the watershed of
the Lampasas River and our current conditions model does include those
return flows as part of flow and even with those return flows in the
model, we still could not find water available for Mr. Ware’s
application.42
Regarding the 74,000 acre–feet of return flows themselves, Dr. Alexander testified
that they were:
[T]he result of different return flow locations throughout the [Brazos
River] basin and the availability analysis was done at the Brazos River
Authority’s requested diversion point at the Gulf of Mexico, which is
the most downstream place in the river basin, and the Executive Director
had also recommended that prior to reuse of any of these return flows
that the Brazos River Authority submit an accounting plan and a water
management plan and a whole host of other items that would limit or
direct how these flows would be used.43
Dr. Alexander also testified that BRA might be able to divert water downstream of
its 12 reservoirs as opposed to down at the Gulf of Mexico. She explained that was
42
Testimony of Dr. Kathy Alexander. AR, Vol. 8, (Transcript, Vol. 2), p. 384, ln. 1–7.
43
Id., p. 360–61, ln. 3-13.
18
possible because BRA has a number of large permitted reservoirs and, “should a
shortage occur . . . as a result of diversions of those return flows, the BRA has a
number of sources and a system operation permit that would allow them to make up
those shortages in downstream senior water rights.”44 When asked why Ware could
not do that, Dr. Alexander testified:
Mr. Ware’s application is a direct diversion from the stream. If he were
taking other people’s water, there’s no way for him to give it back
without reservoir storage or some other option.45
Dr. Alexander’s testimony on the lack of available water quoted above is
consistent with the policy expressed in TCEQ’s “75–75 Rule”, which provides in
relevant part as follows:
For the approval of an application for a direct diversion from a stream
without sufficient on or off channel water storage facilities for irrigation,
approximately 75% of the water requested must be available
approximately 75% of the time when distributed on a monthly basis and
based upon the available historic stream flow record. . .46
TCEQ staff’s water availability review showed that 75% of the water Ware was
requesting would be available in only 5.2% of the years of the period of record.47
44
Id., p. 361, ln. 7–20.
45
Id., p. 361, ln. 21–25.
46
30 Tex. Admin. Code § 297.42(c).
47
See Water Availability Review. AR, Vol. 5, Item No. App. 47, p. 1.
19
TCEQ may grant an exception to the “75–75 Rule” provided the applicant “can
demonstrate that a long-term, reliable, alternative source or sources of water of
sufficient quantity and quality are economically available to the applicant to make the
proposed project viable and ensure the beneficial use of state water without waste.”48
In this case, TCEQ staff suggested to Ware that he secure an alternate source of water
in a letter dated March 20, 2006.49 However, Ware provided no evidence of alternate
sources that would satisfy the requirements of this exception.
B. There is more than ample support for TCEQ’s analysis in this case.
The record is replete with support for TCEQ’s analysis in this case. The
applicable law supports it as well. In 1997, the Texas Legislature enacted an omnibus
water bill known as “Senate Bill 1.”50 As part of Senate Bill 1, the Legislature
required TCEQ to “obtain or develop an updated water availability model” for all
river basins in Texas by December 2001 and, upon developing the models, to provide
comprehensive new information to water rights holders and water planners about
water availability and potential environmental impacts of drought.51
48
30 Tex. Admin. Code § 297.42(c).
49
AR, Vol. 6, Item No. ED 5, p. 1.
50
Act of June 1, 1997, 75th Leg., R.S., ch. 1010 § 2.07, 1997 Tex. Gen. Laws 3610. A copy
is at Appendix Tab G.
51
Id. at 3679–80, § 7.01, codified as Tex. Water Code § 16.012(g)–(j).
20
The model software was developed and revised by Dr. Ralph Wurbs from
Texas A&M University.52 The model was the collaborative work of consultants,
TCEQ, the Texas Water Development Board, environmental agencies, and others.53
Hydrology witness Jeffrey Thomas, a registered professional engineer and registered
professional geologist who had performed water availability analyses for TCEQ for
over 10 years at the time,54 testified that, to his knowledge, the Brazos water
availability model was the most accurate method of determining water availability
that was available at the time of the hearing.55
Both Mr. Thomas and Dr. Kathy Alexander (who at the time was a doctoral
candidate, who had a Masters of Science in Applied Geography, Water Resource, and
Environmental Management, who had worked on water availability model
development teams and worked as a hydrologist for TCEQ for almost 10 years )56
testified that extending the period of record for the model, as Ware’s witness Sam
Jones suggested, would only add data that was within the range of water variability
52
Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), p. 73, ln. 17–19.
53
Id., p. 176, ln. 7–10.
54
Resume of Jeffrey C. Thomas, P.E., P.G. AR, Vol. 6, Item ED-1.
55
Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), p. 174, ln. 5–9.
56
Resume of Kathy Alexander. AR, Vol. 6, Item ED-6.
21
already contemplated by the model.57
In contrast to the testimony of Mr. Thomas and Dr. Alexander, the testimony
of Ware’s technical witness, Mr. Sam Jones, lacked credibility. Mr. Jones conceded
that he was not an expert on the TCEQ’s water availability models.58 While he
worked in TCEQ’s water rights adjudication program, he admitted that he did not
work with models in that job.59 He admitted that he had never worked with any type
of model or any other analytical framework to determine whether there was water
available in a stream in the manner used by TCEQ.60
Ware claims that the Commission ignored record evidence and that the only
reliable evidence favors him. Not so. Neither the SOAH ALJ nor the TCEQ
Commissioners was persuaded by Mr. Jones’s testimony and by Ware’s theory that
he should have been given some of the water identified in BRA’s application as
return flows—water with a diversion point far from Ware’s location and subject to
a very different type of permit including a water management plan for ensuring that
other water rights are protected.
57
Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), p. 114, ln. 6–p. 115, ln. 25;
Id., p. 176, ln 2–p. 177, ln. 1. Testimony of Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p.
346, ln. 19–p. 348, ln. 3.
58
Testimony of Samuel W. Jones. AR, Vol. 7 (Transcript, Vol. 1), p 219, ln. 15–18.
59
Testimony of Samuel W. Jones. AR, Vol. 7 (Transcript, Vol. 1), p. 220, ln. 15–17.
60
Testimony of Samuel W. Jones. AR, Vol. 8 (Transcript, Vol. 2), p. 294, ln. 3–12.
22
Ware’s evidentiary arguments under Point of Error No. 1 are actually a
statement of his disagreement with the conclusions TCEQ reached on the evidence,
not on a lack of evidence to support TCEQ’s decisions nor on the agency ignoring the
record evidence. The record evidence amply supports the Commission’s decision not
to allocate to him the BRA return flows that are the subject of Ware’s Point of Error
No. 1. He cannot ask the Court to substitute the Court’s—or his—findings on the
evidence for those of the agency.
C. Agency experts did not provide contrary or improper evidence.
At pages 15-17 of his brief, Ware asserts that TCEQ’s decision was based on
an unlawful procedure occurring at the open meeting in which the TCEQ
Commissioners considered the PFD from the SOAH ALJ. Ware claims that agency
staff responded to questions from the Commissioners with statements that were
contrary to their testimony at the SOAH hearing and that the Commissioners in turn
treated these answers as evidence. Ware’s claim is meritless.
First, Ware’s claim cannot be substantiated because he did not request that the
transcript of the Commissioner’s meeting be included in the administrative record.
The Administrative Procedure Act does not list transcripts of these open meetings as
a necessary part of the record, and they are not usually included.61 But Ware did not
61
Tex. Gov’t Code § 2001.060.
23
even try to have a transcription included by utilizing the statutory provision
authorizing a court to permit additions to the record.62
Second, although Ware tags it an unlawful procedure, there is nothing improper
about the Commissioners asking questions and receiving answers from staff at an
open meeting. From Ware’s unsubstantiated description of the exchange, the
questions were about the record, which is the very point of such a public meeting.
Third, Ware’s unsubstantiated description of staff answers do not demonstrate
that they contradicted earlier testimony before SOAH. According to Ware,
Dr. Alexander told the Commissioners that the BRA return flows were considered in
determining water available for Ware. At the SOAH hearing, Ware’s counsel asked
if the ED had run any analysis using the information Ware put forward through its
witness Mr. Jones or had asked TCEQ expert Mr. Thomas about. Dr. Alexander
answered that they had.63 Ware’s case focused heavily on return flows.
Dr. Alexander said that the ED had run an analysis using information from Ware’s
witnesses; that surely included return flows. Clearly, staff had considered Ware’s
attack on their 2006 Water Availability Memorandum (Applicant’s Exhibit 47) and
determined that his information did not change the unfortunate reality that there is not
62
Tex. Gov’t Code § 2001.175(b).
63
Testimony of Dr. Kathy Alexander. AR, Vol. 8, (Transcript Vol. 2), p. 370, ln. 12-22.
24
enough water to grant his renewal request. Dr. Alexander did not contradict this
testimony when she answered Commissioners questions.
III. REPLY TO WARE’S POINTS OF ERROR NOS. 2 AND 5
In Points of Error Nos. 2 and 5, Ware cites to a number of statutes, but
particularly to Texas Water Code §§ 11.1381 (relating to term permits), 11.046(e)
(relating to return of surplus waters to streams), and 11.134(b) (relating to TCEQ’s
consideration of permit applications). He attempts to weave those statutory
provisions into evidentiary arguments he makes about water availability, apparently
in an attempt to suggest that he has some entitlement to receiving a permit renewal
based on these statutes. Ware is wrong.
A. In attacking TCEQ’s findings, Ware misconstrues Tex. Water Code
§ 11.046(c).
In Point of Error No. 2, Ware attacks the Commission’s Finding of Fact No. 44,
which states:
44. The addition of “new water,” if it were proved to exist, would be
subject to all prior appropriation rights of senior water rights
holder[s] and could not be treated as available for new
allocation.64
Ware argues that this finding is inconsistent with language in Tex. Water Code
64
TCEQ’s Final Order. AR, Vol. 4, Item No. 64, p. 5.
25
§ 11.046(c),65 but in so doing, Ware misconstrues the statute.
Section 11.046(a) provides that surplus waters be conducted back to streams
by gravity flow, whenever practicable. That language has been in the Texas
statutes—virtually unchanged—since at least 1917.66 The Legislature added
Subsections (b), (c), and (d) to the statute in 1997 as part of Senate Bill 1.67
Notably, § 11.046(b) authorizes TCEQ to place conditions on any permit that
requires certain percentages of water to be returned to streams at certain places, “to
protect senior downstream permits, certified filings, or certificates of adjudication
or to provide flows for instream uses or bays and estuaries.”68 Section 11.046(b)
does not allow TCEQ to reserve water for new permit holders or junior permit
holders; it speaks in terms of protecting senior water rights holders, of allowing
surplus water to flow to senior water rights holders.
The first part of Water Code § 11.046(c) provides that a water rights holder
may use and reuse the water allocated under the permit as provided in the permit, but
65
Ware’s Brief at 20-21. Ware also discusses § 11.046(e) in more detail in his Point of Error
No. 5. See Ware’s Brief at 32-38.
66
Act of Mar. 19, 1917, 35th Leg., R.S., ch. 88, § 72, 1917 Tex. Gen. Laws 211, 229. A
copy is at Appendix Tab E.
67
Act of June 1, 1997, 75th Leg., R.S., ch. 1010 § 2.07, 1997 Tex. Gen. Laws 3610, 3620.
A copy is at Appendix Tab G. A copy of Tex. Water Code § 11.046 in its current form (unchanged
from 1997) is at Appendix Tab D.
68
(Emphasis added.)
26
it is the second part of Water Code § 11.046(c) that Ware emphasizes—and
misconstrues. It provides as follows:
Once water has been diverted under a permit, certified filing, or
certificate of adjudication and then returned to a watercourse or stream,
however, it is considered surplus water and therefore subject to
reservation for instream uses or beneficial inflows or to appropriation
by others unless expressly provided otherwise in the permit, certified
filing, or certificate of adjudication.69
Ware contends both in Point of Error No. 2 and Point of Error No. 5 that return flows
should be available to him under a term permit by virtue of this language.70 But there
are several flaws in his reasoning. First, Ware seeks a term permit (or renewal of a
term permit). As discussed at the beginning of this brief, a term permit is given for
water that is already subject to appropriation by another person but is simply not
being used at present. There is no law that allows a person to appropriate another
person’s water under a term permit. As discussed above, the Stacy Dam decision
would prohibit that.
Additionally, the term “appropriation by others” in § 11.046(c), when read in
context with the rest of the statute, clearly does not mean surplus water released into
a river is somehow preserved for use by junior water rights holders or term permit
69
(Emphasis added.)
70
Ware’s Brief at 20-21; 32-38.
27
holders when there are substantial numbers of senior water rights holders who do
have senior rights to appropriate water in the river.71 And that is the case in the
Brazos Basin. It is undisputed that there are rights on the Lampasas River and
downstream on the Brazos River that are senior to Ware’s claimed 1997 priority date.
B. The broader statutory scheme confirms that Ware’s interpretation of
Water Code § 11.046(c) is incorrect.
As noted above, the additions to § 11.046, including Subsection (c), were part
of Senate Bill 1. Related changes were made to Tex. Water Code § 11.042, relating
to the movement of groundwater and surface water down the bed and banks of Texas
streams.72 Section 11.042 as amended by Senate Bill 1 provided TCEQ with authority
to impose restrictions on the use of river beds and banks for the conveyance of water,
including water that originated in streams and water that originated in underground
aquifers. TCEQ was authorized to impose restrictions to protect water rights in the
streams and to address environmental issues as well.73 The purpose of amendments
to §§ 11.042 and 11.046 were explained in a commentary by Martin Hubert, general
counsel to former Lieutenant Governor Bob Bullock, and Governor Bullock
71
As Ware emphasizes in his brief, the law provides that “As between appropriators, the first
in time is first in right.” Tex. Water Code § 11.027.
72
Act of June 1, 1997, 75th Leg., R.S., ch. 1010, § 2.06, 1997 Tex. Gen. Laws 3610, 3620.
A copy is at Appendix Tab G.
73
Tex. Water Code § 11.042(b) and (c).
28
himself.74 The authors explained these changes in the context of water reuse. They
wrote:
While reuse has been proven to decrease the total amount of water
needed by a user, it also decreases the amount of water available to
downstream users because more water is reused and less water is
discharged. As a result, there is less water available for the
environmental needs of instream flows, bays, and estuaries.
Additionally, less water is available to downstream users dependent on
discharged water. These situations present an especially critical
problem in already over-appropriated rivers and streams.75
Specifically citing both §§ 11.042 and 11.046 in a footnote, they continued:
S.B. 1 addresses this situation by balancing the needs of upstream and
downstream interests.
The changes to § 11.046 cited by Ware were not made to insure that junior
water rights holders and term permit applicants were guaranteed an increment of
water. They were made to balance the needs and interests of existing senior
appropriators and the environment in the face of growing demand for water recycling.
Finally, Ware improperly attempts to bolster his argument by claiming that the
ALJ who heard the BRA application accepted Ware’s interpretation of § 11.046 and
rejected the ED’s interpretation.76 But the ALJ said that he disagreed with both
74
Martin Hubert and Bob Bullock, Senate Bill 1, the First Big and Bold Step Toward
Meeting Texas’s Future Water Needs, 30 Texas Tech L. Rev. 53 (1999).
75
Id. at 62 (footnotes in text omitted).
76
Ware’s brief at 36, relying on Ware’s Exhibit I.
29
parties’ competing analyses, so Ware’s reliance is misplaced.77 Moreover, Ware
himself has said that the BRA matter was remanded to SOAH, so it remains to be
seen how much of the first BRA PFD remains intact.
C. Ware misinterprets the Water Code, but even if he were right, the proper
interpretation of § 11.046(c) is not dispositive here. Ware’s renewal was
denied based on his location; the order can and should be affirmed on that
basis.
At Finding of Fact No. 45, the TCEQ order denying Ware’s renewal finds that
BRA’s requested return flows become available only at the furthest downstream point
in the Brazos River basin. This is in accord with the testimony of Dr. Kathy
Alexander, who performed the water availability analysis for the BRA application and
testified that the analysis used a diversion point of the Gulf of Mexico, the furthest
downstream point.78 Ware’s diversion point is well upstream from that. The return
flows are simply not available to him.
This was more fully explained by the ED in his response to Ware’s written
closing arguments at SOAH.
The Executive Director did include the return flows in the modeling
used in the review of Applicant’s request for a term renewal but the
model showed that none of those return flows was available at
Applicant’s diversion point. What the model shows is that these return
77
Id. at 147, CR at 213.
78
Testimony of Dr. Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p. 360, ln. 5-8.
30
flows were already reserved for some purpose of use downstream from
Applicant’s diversion point by the time his application was received.
The hydrologic function and management of the Brazos River Basin
depends on the presence of those return flows.79
These return flows were not, as Ware claims, reserved for future applicants—they
were already needed for other purposes.
IV. REPLY TO WARE’S POINT OF ERROR NO. 3
A. BRA withdrew its protest of Ware’s renewal application, but that did not
make water available for Ware.
Ware discusses the fact that BRA withdrew from the proceedings and argues
that BRA’s actions mean that his application should be granted. He is wrong.
Neither BRA’s decision to withdraw nor any resultant lack of evidence on the
limiting factors for granting a permit application under Water Code § 11.1381 or
§ 11.134(b) serve to make the granting of Ware’s application mandatory. Especially
in a time of burgeoning population and record drought, such a construction of the
statutes would not be reasonable. Put simply, BRA is not Ware’s problem. A lack
of water is Ware’s problem.
B. Even if Ware were right that he should have been given a 1997 priority
date, it would not matter.
Reurging the issue of priority dates, Ware insists that he is entitled to some of
79
AR, Vol. 4, Item No. 57, p. 6.
31
the return flows listed in BRA’s application because he has a 1997 priority date while
BRA’s priority date is 2004, yet the ED used the 2006 date of his renewal application.
TCEQ hydrologist Dr. Alexander testified that using 1997 would make no difference:
It’s just at a very junior date whether it’s 1997 or 2006, because of the
vast number and amount of water rights that have been appropriated,
there’s certainly—there just isn’t enough water let to go around which
is why we recommended denial of Mr. Ware’s application.80
Any “error” in choosing a priority date was harmless error.
C. Ware’s cancellation theory is wrong.
Ware also claims that he is entitled to the return flows in BRA’s application
because he has been beneficially using water under his existing permit. Ware claims
that the TCEQ is implementing a cancellation program for term permits, and that this
is improper because water rights cannot be cancelled if they are being put to
beneficial use. All of these claims rest on Ware’s false premise that his term permit
functions similarly to a permanent water right. In this, as in so many other respects,
the two types of permit are very different.
While permanent water rights can be cancelled if the permit holder does not use
the water for ten years,81 term permits are not subject to a cancellation program—they
80
Testimony of Dr. Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p. 389.
81
Tex. Water Code § 11.172.
32
are self cancelling. Ware’s statement that “TCEQ is essentially implementing a
cancellation program for term permits” ignores reality. Term permits do not have to
be cancelled—they expire on their own terms, in this case after ten years. Ware
sought to renew his term permit but the agency determined that there is not enough
water available to do so.
By describing TCEQ’s denial of his renewal request as a “cancellation” of his
term permit, Ware tries to use Water Code § 11.172 and Lower Colorado River
Authority v. Texas Department of Water Resources, 689 S.W.2d 873 (Tex. 1984) (the
Stacy Dam case) to his advantage. In Ware’s view, because permit holders not using
all of the water appropriated to them in their permit can be subject to at least partial
cancellation, someone like Ware who is using water should be shielded from
cancellation. Once again, Ware ignores reality. The water that he is using does not
belong to him. He holds a term permit, which by its very nature is the ability to
temporarily use water allocated to someone else—a permanent water right
holder—who is not currently using it. That current nonuse is the very reason that
term permits can be granted. But term permit holders cannot use the fact of their
temporary use to bootstrap themselves into the same status as a permanent water
rights holder, which is what Ware attempts here with his “I-am-using-it-so-it-cannot-
be-taken-away-from-me” argument. It was not taken away—it was not there when
33
the time came to seek renewal. As the record, the briefs, and the argument all
demonstrated, no matter how the water availability assessment was done, there was
not enough water for Ware, so his term permit was not renewed. TCEQ’s Order
should be affirmed.
V. REPLY TO WARE’S POINT OF ERROR NO. 4
Ware’s Point of Error No. 4 insists that his 2006 application for renewal should
have been reviewed using a priority date reflecting his 1997 permit, that the staff’s
use of the renewal application’s 2006 date is a policy change and collateral attack on
the order issuing the 1997 permit, and that using the 1997 date would have made all
the difference to him, because it would have put him ahead of, i.e., made him senior
to, BRA, whose application was reviewed using a 2004 priority date.
Ware fails to understand that priority assessments for term permits are different
from permanent water rights. The Executive Director explained term-permit priority
dates in his written response to closing arguments.82 When a term permit is assigned
a priority date—as Ware’s 1997 permit (and its renewals) was—that is for purposes
of determining its seniority against junior term permits.83 But when the time for
renewal arrives, the central principle underlying a term permit must be honored: there
82
AR, Vol. 4, Item No. 57, pp. 2-5.
83
Id. at 2.
34
must be sufficient appropriated but unused water available for the term permit holder
to be granted another term.84
In order to make this determination, the staff uses the current conditions
program in the water availability model. To do otherwise—to evaluate a renewal
based on conditions that are ten years old—would run the risk of error and over-
appropriation of water because it would not take into account the permanent water
rights holders who may have started using their water since the original term permit
was granted.85 If the current conditions program indicates that there is enough water
for another term, then and only then would the original date (1997 for Ware) be used
to, at best, establish priority of rights among term permit holders.86 There was no ED
staff change of policy, denial of due process, or collateral attack on the 1997 order.
That order never came into play because the requested renewal could not be granted
due to a lack of water.
Ware also asserts that the record is clear that staff did not use the 1997 date in
modeling for water availability, as if that were reversible error.87 The TCEQ staff
84
Id. at 3.
85
Id. at 3-4.
86
AR, Vol. 4, Item No. 58A, pp. 25-26.
87
Ware’s brief at 29.
35
explained why not: using 1997 as the priority date would make no difference because
of the brief period of time between the two dates.88 Ware characterizes staff
testimony as indicating a procedural irregularity within the Executive Director’s staff
that the Court may examine,89 alluding to the provision of the Administrative
Procedure Act allowing courts to take evidence of procedural irregularities “alleged
to have occurred before the agency that are not reflected in the record.”90 In his
brief, Ware cites to testimony and evidentiary rulings relating to the very complaint
about priorities that he makes.91 Actually, Ware’s counsel cross–examined Jeffrey
Thomas at length about the priority date issue.92 The ALJ also questioned Mr.
Thomas at length about the priority date issue, and he questioned Mr. Thomas as to
why it did not make any difference in Ware’s application.93 Ware’s theory that there
are procedural irregularities to be examined should be rejected.
88
Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), pp. 173-74; Testimony of
Dr. Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p. 389.
89
Ware’s brief at 28-29.
90
Tex. Govt. Code § 2001.175(e). (Emphasis added.)
91
On page 29 of his brief, Ware cites to the testimony of Jeffrey Thomas in Vol. 1 of the
Transcript.
92
See, e.g., AR, Vol. 7 (Transcript Vol. 1) pp. 116–124 (Testimony of Jeffrey Thomas.).
93
See AR, Vol. 7 (Transcript Vol. 1), pp. 186, ln. 3 – 193, ln. 13 (Testimony of Jeffrey
Thomas.).
36
Ware fails to recognize that term permits and permanent water rights run on
parallel tracks in terms of establishing seniority based on priority date. The two types
of permits are not mingled together in assessing who is senior to whom. But Ware
incorrectly treats them as if they were. The ALJ, TCEQ Commissioners, and district
court all saw the fatal flaw in Ware’s reasoning and rejected his priority-date theory.
VI. REPLY TO WARE’S POINT OF ERROR NO. 6
In Point of Error No. 6, Ware complains that Findings of Fact Nos. 45, 49, 50,
and 51 refer to the Brazos River Authority’s pending permit application. This
complaint is meritless. It was Ware himself who inserted BRA into this matter by
offering the water availability memo for the review of BRA’s application as
Applicant’s (Ware’s) Exhibit 50, insisting, over the ED’s objection, that it was
relevant.94
Most of these complained-of findings discuss priority dates. Again, it was
Ware himself who has argued repeatedly at SOAH, TCEQ, district court, and now in
this Court that the ED’s staff erred in assigning priority dates that put BRA earlier in
time than Ware. Ware now complains of findings that his own argument invited.
94
AR, Vol. 7 (Transcript Vol. 1), pp. 134-35. And while Ware initially indicated that his
offer was of pages 1 through 7 of the document, the entire document was ultimately admitted without
any limitations to its admissibility or use. AR, Vol. 8 (Transcript Vol. 2) p. 255.
37
VII. CONCLUSION: NOT ONLY ARE WARE’S LEGAL THEORIES
WRONG, THE EQUITIES DO NOT FAVOR HIM EITHER.
Ware himself testified that the permanent water right once associated with his
family farm was lost years ago through inaction, albeit through no fault of his own.95
He emphasizes the undisputed and indisputable principle that Texas agriculture is
important and paints a picture of a family farm facing ruin. But he does not
emphasize or even state that he has already obtained most of the water that he sought
in his renewal application. He testified that he bought 100 acre-feet of water rights,
which he intends to use to expand.96 Renewal of his 1997 permit for another 10 years
at his original 130 acre-feet and requested additional 20 acre-feet would put him well
ahead. In fact, it would total 250 acre-feet, almost double the original 1997 amount.
The denial of his renewal request, while disappointing, has not significantly harmed,
much less ruined, Ware.
PRAYER
Appellee TCEQ respectfully prays that the agency order be affirmed.
95
Testimony of Bradley Ware. AR, Vol. 7 (Transcript Vol. 1), p. 22.
96
Testimony of Bradley Ware. AR, Vol. 7 (Transcript Vol. 1), p. 64-65.
38
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Litigation
JON NIERMANN
Chief, Environmental Protection Division
/s/Linda B. Secord
LINDA B. SECORD
Assistant Attorney General
State Bar No. 17973400
Office of the Attorney General
Environmental Protection Division
P.O. Box 12548 - MC 066
Austin, Texas 78711-2548
Tel: (512) 463-2012
Fax: (512) 320-0911
Linda.secord@texasattorneygeneral.gov
ATTORNEYS FOR DEFENDANT, TEXAS
COMMISSION ON ENVIRONMENTAL
QUALITY
39
CERTIFICATE OF COMPLIANCE
1. This brief complies with the volume limitation of Tex. R. App. P.
9.4(i)(2)(B) because it contains 9,033 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9.4.(i)(1).
2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
and the type style requirements because it has been prepared in a
proportionally spaced typeface using WordPerfect for Windows, version 12
in Times New Roman 14-point type face for text and 12-point type face for
footnotes.
/s/Linda B. Secord
LINDA B. SECORD
Attorney for Appellee
Office of the Attorney General
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief of Appellee Texas
Commission on Environmental Quality has been served on the persons listed
below electronically by an electronic service provider and by email on the same
day, April 17, 2015:
Stephen P. Webb
Gwendolyn Hill Webb
Webb & Webb
712 Southwest Towers
211 East 7th Street
Austin, Texas 78701
/s/Linda B. Secord
Linda B. Secord
40
Index to Appendix
Item Description
Numbe
r
A Permit No. 5594 (AR, Vol. 5, Item No. App 2)
B Proposal for Decision (PDF) (AR, Vol. 4, Item No. 58A)
C TCEQ’s Final Order (AR, Vol. 4, Item No. 64)
Statutes
Texas Government Code
§ 2001.060
§ 2001.175
Texas Water Code
§ 11.022
§ 11.025
§ 11.026
§ 11.027
§11.042
§11.046
§ 11.121
§ 11.134
§ 11.1351
§ 11.1381
§ 11.146
§ 11.147
§ 11.1471
D Statutes (cont.)
§ 11.1491
§ 11.150
§ 11.151
§ 11.152
§ 11.171-.186
§ 11.172
§ 16.012
E Act of Mar. 19, 1917, 35th Leg., R.S., ch. 88, § 72,
1917 Tex. Gen. Laws 211
F Act of May 21, 1987, 70th Leg., R.S., ch. 405, § 1,
1987 Tex. Gen. Laws 1932
G Act of June 1, 1997, 75th Leg., R.S., ch. 1010,
1997 Tex. Gen. Laws 3610
H Rules
30 Texas Administrative Code
§ 297.19
§ 297.42
I Executive Director’s Response to Closing Arguments (AR, Vol. 4,
Item No. 57)
Appendix
A
I
App. Exh
Þ
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TEXAS COMMISSION oN EI\I\.TRONMENTAL F:z
P.O. BOX 13088, MC_l60
Austin, Tcxas 7871 l-30Sg
Telephoné No. (512) 23g46gt FÆ( (512)
Zsg¿ltO
APPLICATION FORAMENDMENT TO A\ryATER
RIGHT
REQUIRING TVÍAILED A}.ID PIJBLISHED
NOTICE; oT
. .NOTREQUIRING À{AII,ED ANÐ PIJBLISHED NOTICE
Refore,nce Toas Admbistrative code
section ãgsrià'o) * o
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Fffffi#^ðÀf-* rÂPrP&ÂT D*rqrr*o p*."rßsr r,o.o.^rro*r, rrrv*Bsr$N ,,or\rr,
Form TCEQ -10201 (revised B/02)
ll.
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OIF
STA,TE OIF
JENNIFEB L ïULEV
@" tloürt P!DlE, tffi of T6
Gmnl¡¡lol E¡?h¡r lßlt-zrün
Form TCEQ-10201 (revised 8/02)
t
Texas NaruReI, Rpsouncn CoTvSERVATIoN Co¡I¡,TISSIoN
\
PERMTT-To AppRopmerb
AND USE STATE TVATER
APPLICATION NO. 5594 PERMIT NO. 5594 TYPE:. Secrion I1IZI
Name: Bradley B, 'Ware Address: Rte, 3, Box 211
Killeen, TX76542
Filed
Granted l{0y 0 7 19s7
Purposes
County Bell
Watercourse:
Watershed: Brazos River Basin
Éra¿Tel B.:wäiäläsìéclüèstea äritho¡?äüoïtô
ciinèit-äuã üié'noitölti"ó"ã-r,o
r annum to irrigate l00 acres of'Iand
owned by the:applicant in BeIr county
les southwest of Kifegn, Texas; and
WIIEREAS' the Texas Natural co*ovution commission fi¡ds that jurisdiction over
application is established; pd the
WI{EREAS, no pbrson protested the granting
of this application; and
WHEREAS, the commission has complied
i,vith the:requirements of the Texas .water code
and Rules o.{ ttre-T¡xa1 Natr$al n.rout..
ô;ni.t*rili co.*ission inissuing rhis.perrnit.
Now' TryYfoRE, x¡s FrTt io appropriate and'use
'ware, srare ïvareris issuø to niaarey n.
subject to the forlowing i.r*r and conditions: i .,
and use nöt to exceed 130
to irrigate 100 acres ofla
t No. 67, the D.G, Van
1
Ë'¿rtxrì.4-.æ . -.Â. .a:
survey, AbstractNo. g51, and the c. Edwards survey,
Abstract No.291 inB\ell
counly, Texas approximately 15 miles southwest
of Éib.r,lïr-"rl rl,
ürrã',r,
conveyed to perrrittee in a deed ¡ecorder i¡ vorume
1524, page 67r oi tH. n.u
County Deed Records.
2. DIVERSiON
a Diversion A¡ea: permitte is authorized to divert
wate¡ f¡om any point
o¡ the left o¡ east .bank of the Lampasas River, between
a point
N60.6'w 2,050 feet from the southeast corne¡ of the
aforesaid van
Vicheton Survey and a point located S37'E 4,200
feet frorn the
aforesaid survey cor'er in Bell county. This
downstieam poiat is
located ar Latitude 31.032.N, Longitude 97.gg2"w.
b Maximum Diversion Rate: 2.67 cfs (1200 gpm).
3, SPECIAL CONDITIONS
a. In order to protect instream uses, biological habitats and water quality,
pemrittee is authorized to divert waterLreo"a.r:ãuring.the
months of
{nrit through June only when rhe flow of rhe iÃ}"ru, River ar
u.s.c.s.'Gaging station No. 08103800 near K;*ñ:
:: bi -êxcéeds 38 cfs arid'dui.iitg:ffis.öther
r.*urlqu"L
mõnths oniy.Vtren-it,equais or
exceeds 12 cfs. . - ." .. -
.
b' The authorization to divert and .use 130 acre-feet
of waier per year shall
. expire a¡rd become null anil void on@ unless
prior to such date permittee applies tot uffiîu"n
application is sub'sequently granted for an additio""i
perpetuity. The priority date of this permit and
tËr"r- i,
"r-
all extensions h.ereof
shall be July 1,j.gg7. ' :
4. ÏVATER CONSERVATION
y4_tiop.p[at tha.r .p5o.v,igqs foq
Jþe
and technotoþies that reduce the
e- loss o¡ waste of water, ¡naintain
o¡
, , or
of wate¡ so that a water supply is made available
increase the recycling and reuse
fo¡ future or alternative uses.
:.
d subject to all superior and senior *utri rights in the B¡azos River Basin
2
È:
€
Pern'ittee agri:es to be bouud by the terms, conditioru and provisions
contai¡ed hereih and such
agreement is a conditionprecedent to the granting of this permit.
All other matters requested in the application which are not specificaiiy granted
by this permit
are denied
This permit is issued subject to the Rules of the Texas Natural Rgsource
conservation
Commission and to the right of continuing supervision of Sute water rêsources
exercised by the
Commission,
TEXAS NATURAL RESOTTRCE
CONSERVATION COI\¿IøISSION
For
DATE ISSIJED: HOl/ 0 7 1997
ATTEST:
EugeniaK.
t
il;
Ph.D.,Chief Clerk
3
!
...
gqg
--
}Y
REQUIREMENTS FOR WATER CONSERVATION PLANS
FOR INDIVIDUAL IRRIGATION SYSTEMS
--
These are a synopsis of the rules AS approved by the
Comrnissioners of the Texas Commission on Enviro
nmental
April 7, 1993. The approved rules were publíshed in Quality
on
the Texas
Register on April 23, and are recorded in the Texas
Administrative
Code, Title 30, Chapter 288. Conservation plans required
to be
submitted to the Texas Commission on Environmental
Quality must
follow these guidelines.
A water conse idual inigatorshall provide information, where applicable,
in responseto ements, äcluding wtrat the user intends to do, or not
to do
and why, wittr
(1) A description of the agricultural production process which shall j¡rclude
but is not limlted
to the t1'pe of crops and acreage of each ..opio be irrigated,
monthly lrrigation diversions
and any seasonal or annual crop rotation and soil typäs
of the land io U. rrrig;¡gd;
(2) A descnption of the irrigation method or system and equipment including pumps,
flow
rates, plans, a¡d./or sketches of the system iayout;
(3) A description as which practice and,/or device will be utilized to measure
and account
fo¡ the amount of^towater diverted from the source of supply;
(4) {} p,.uious assessments which may have been performed regarding the system
efficiency of the irrigation system;
(5) Specification of conservation goals including quantitative goals for
irrigation water use
efficiency;
(6) Water conserving irrigation equipment and application system or method
including but not
lÍmited to surge irrigation, low pressure rpiinttu., drif irrigation, pollution
preïention,
a¡d non-leaking pipe;
(7) Leak-detection, repair, and water-loss control;
(8) Scheduling the timing and./or measuring the amount of water applied, such as, soil .
moisture monitoring;
(e) Land improvements for retaining or reducing runoff, a¡d increasing
the infiltration of rain
and irigatlon water including but not limited to land leveling,
fu¡rori diking, terracinj, anJ
weed control;
(i0) Tailwater recovery and reuse;
(l 1) Any other water conservation practíce, method, or technique which the
irrigator shovy to
be appropriate for preventing waste and achieving conr..uãtion.
I
fì
Texæ Commission on Envj¡onmental Quality
IRRIGATION WATER CONSERVATION DATA AND PLAN
FOR INDIVIDUALLY OPERATED SYSTEMS
Subrnit this forrn with an application for PermÍt to Appropriate State Water, you may want to contact
the local County Agent, Natu¡al Resou¡ces Conservation Service office, ttre Texæ Water Development
Board or a professional engineer ir preparing this form. If you have any questions concerning the
information requested, contact us at (51 2)Z3e-4730.
Name of Applicant: B, wARe
Daytime Telephone No.: 2S+-lr 2r7
Requested Diversion Amount: r50
sæ Þ P¡.âe :'oe-
L Type of crop: Growing season (months): -
Acres Írrigated/year:
L
2.
3
4.
Total number of acres: 132
Include hybrid crop names: for example, which tlpe of coastar Bermuda?
II On average, how much water in acre'feet uritl b€ diverted monthty for írrigation?
January (" May 2l September 2o
Lt TOTAL
February June tfl October r7
for all
March 3 July 25 November 5 months
April ,1 30
August December 5
MONTHL
Y
TOTALS 2,o 1z 3t 150
Itr, Do you seasonally or annga.þ rotate crops? NO (circle one)
Ifyes, please describe WT\ SDK6
6Uc\1 As Ausr ì-) UJ INTER PÉAS .
C:\FORMSU 02t6.hd (rcvlsd 3ßE Page 2
¿i
q* €
Bradley ÏVare
Part I. .
Some ofmy land I double crop,
þpe of top: Growing seflson (months) Acres íní/year
Tifron 85 Bermuda 8 months 36
Soft Wheat (Graaing) -lJ (double orop) 6 months 36
2, Improved Native Grass 9 months 22
3. Brown midrib Sorghum
Bob oats or soft wheat l 7 months
(double crop) 5 months
s4
54
4 Costal Bermuda glass -:-l (double crop) 8 months 20
Bob oats or soft y¡!¡s¿f-J 5 months 20
I
t
ry. Describe your soil Çpe (nclude permeabiliry characterislics, if available) BoSoue C
LOAÍ\A H I W I.\DLDI¡Jô C'A?AC ÒN 5l
-t C' D(ßP
LL DRAINIE, SLDIJ PÉ.RMAß AIJD
3õ€ò€D TO NAÎUE 6RASS SP€CIgS,CRAWFDRD C(AV-WEI| DRAUED PRÉS€O
eol.JTDUR rE, RRAC€,D , ALSo RÉF€,R rb -rÐXAs coo ERATi r.J€
POõUcATìoN ø-./'.t7o p.B,
ext€usrolo
V. Describe the existing/proposed irrigati on system including plans, designs and/or sketches
of the system layout, pump location, slope of the land to be irrigated, and specifìcs about
the delivery method. (For example: Single pivot with bÍg gun sprinkler)
SLÞP€ O t¡o 3 PÉRC€úI / D€,LIU6RY UI.JDÉR6RCLJ TJD PUC P¿¿MP
CAPAÖry 5ÕO 6P¡,^, / Po¿SeB uN 1r 25 H,P F l-ECiP,tC CCJÜTER PtUat-
LePA DES Ei tJ (lou EI-EI?6Y PR€Cts€ AÞPLI Ol'J ) UJ tlr+ A ñÃs l/{¡,
ÉFFÉC\ AEDUC QSO/O DRAWTU6 gxllrBITS AtB,c, + D. T€xAs
eoÞPÉRA$ UE €xTErôs lou PUBUCAT]DÀJ B -Iør L-22t L-SD4
ts-búb, ts-btbz
VI. Describe the methods and/or device which will be used to measure and account for the
amount of water diverted for írrigation.
CT]\)TCR P IUDT IÅDZZL€. CHART AI'JD PtJf\^P e-FF- ì CE-0\EY CrrRUe
É,HItsfT ð AND c LO6 OF DæRAJ-IDU I{ÔU 5 t+ rT +1,
VII. If .there's is an existing irrigation system any system evaluations been performed
regarding the efficiency of the system? NO (circle one)
If YES, indicate:
When: -t
Who performed rhe evatuarion: DR . f3,(1 LYLC TEXAS A$ M eyrte-us I DL)
sÉRv tG- t LrJBBÞcx 1y
oR,. lgou NEtrJ/ TEXAS Cl)oæf €xc6€ D q5'/o Añ Ò qbo/o UUrtuR^it TV
CFFSÀ)CI É.tJcV
oF DtslRtBUÎD,.J/ €xHlBlT5 F+6,C HoOStt5 A ce,lr,ER ptgõf t3
6UY FIPR5
VIII. Describe any water conserving equipment used in the irrigation system. (i.e
closed pipes,
leak detection, pressure loss cut-off vãlve, etc.)
Hl H EFFCCI ENC t¡rllrtrt
lpcrcnoro)
1eD lr) PVC IIN ÔRDttÑJ D
-VIIL cont . D6LIV ÉRV PtÉ e.Nr Y DPECISG AÞP¿ ).A:TI
A
It
ABC\J6 SoIL 5 URFAC€, TÉXAÉ Cooffi.Æ\JE e).f€ÐSt Dþ Sæ.UICC
PugLtc+rtDÞs , g-bo il t L- zztq ,Bbt øz t B -6t1o t lJ -bú b
x Describe any rnethods which will be used for water loss control and
leak detection and
repair.
R€SSUR€ T PAI A,\Affi lüór
fv\eî+oDs AND DARDS / 5t)PgRç ts ,Þ¡J DORfTJó¡ oERAnor:
X. Describe any water saving scheduling or measurement practices to be utilized in the
application of water, for example: irrigation only early in the morning, late evening
or
night hours, when the wind is calm and temperatures loier, and also thãudlization of
soil
moisture monitoring:
ALL T]l€ ABo\€ , GvPsu M M olr.) llER tL)6 B{-DcKs
^NDIS1ER
DÉLl'"n oRST
^^ETÚ?
IRPI 6ATrotù wtl- BC MD
C:\FORMSU 0¿ I 6.wpd (revlsed 3/98) Page 4
G
XIV. Indicate that water is diverted
from the
C:\FORMS\I0218.r@ (rsdscd 998) Page 6
,i.¡
r-F n, -È,
å
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il:' '
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R^ry68
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State OÆ of Adminis trativè-h eanngs
:-': I
Cathleen Parsle,v
Chief Administrative La'¡' Judge
lìcbruar\' 8. 2010
Lcs'frob¡nan. Gcneral Counsel
'lexa.sC ontmi ssi o¡ ç¡¡ [,¡1r' i ronmenral Quali t¡'
P.O. Box 13087
Austin Texas 7871 l-3087
tìe: SOAH Dockct No. 5ti2-08-1698; TCEQ Docket No 200 I 8l-\\'R: hr Re
Application of'Bradle1"B, S/a¡c to Amend \\/ater Lise P ¡1 5e. j-594
Dear Mr. 'l-robllran
'lexas Commi on on Envirclnrnental
l'he above-ref'crenccd malier wiil be considered '01' tire
Quaii¡, o¡ a clate ancJ rime t¡ be determincd b¡' thc Chief Clerk's O ce in lloonr 20lS oi
Builclrng li.. ì21 i8 N Inlerstate 35, Attstin, Texas'
I:nclosccl are copies of thc- Proposal f'or Decision a¡d Order that have n recorrmendecl to tbe
Cgm¡lissign lor ap¡rrovat. An¡, part-V ma)' f rle exccpticrns or brre ls b¡' fi ng the dcrcumcnts u,ith
thc Cliief'Clerk otthc"l'c'xas Cornrnission on Environnlental Qualit¡'no I er than March L 2010.
,An¡' replies to cxceptions or briefi musl be irled in ihe s allr e no later ihan
\4arch i 0. l0 I ()
I
'T
'l-his nraucr has bccn cìesignared TCEQ Docket No. 2008-018 r-iln; s OAH Docket
No. 582 -0lJ-1698 All docunrents to be filed nrust clearl¡' rcfercn cel thc-se assi{¿ned docket I
ltur¡'ocrs. ^\tl exccptions. briefs and replies along r,r'ith ccrrifìcati on 0f' sc r\¡tce Io lhc abovc
¡rartics shall be filed u'ith thc Chjef' Clcrk of the ]-CEQ clcctrclnicallr' àt
h ().t slate filin or b¡, frling an orilinal a¡ld I SCvell copìes u'ith thc
-t'cL'Q' L
Failure to provide copies mav be gr ounos [or u,ithhoiciing
ciriei cle'k oi rire I
consideration ol' the plcadings,
S incerel¡'.
i ,"ù,' l, .i''t:*,i '(l)
Paul D.Kecpcr I I
I
Administraiivc Lau'{ udse
I'D K:c rn
lìnclosLlres
cc: \4uilrnq l.ist
\\'i il ia nl l). (.lernent.s Ilu iltling
Posr ()ftcc l.]rlx 13021 .ì00 \\;est lSth Strct't. Strire 502 O Âu.srirl Tex¡rs ltì711-l0li
(írl).i15-.í1)9J ' l)ockct (í11)'i:5 l.i'i; t:;rx (.512) 47 t-4<)94
Irttlt: u'tvrr :oalt,s(:ltc (x.tts
ì
-r'
I
soAII l)OCKlil' NO. 582-0ll-1698
TCEQ DOCKE'I' NO. 2008-0l tìl-wl{
APPLICA'TION OF- IìIì,,\I)LT]Y B $ llllFollll'l'llE ST¡\'flt Ol-F'lCE -
W¡\lìE'tO ÄlvlENI) $
W¿\'flill. USD PI|RMIT NO. 5594 $
(x'
$
$ r\DIVIINISTRATI v E IIEAIIINGS
I
I
PIìOPOSAL F-OR DECISION ì
I
ì
'TAIILE OF'CONT'ENTS I
I. INTIIODLICTION
I
III. .ITJIIISDICTION
1
IV. PllOClll)Ull¡\L lllSTOIÌY
3
V. I}ACK(;IIOUNI) FACTS
.d. Ilistory ¡rf thc W¿rrc Flrm ¿¡nd thc Pcrmit 3
lì. Ef)'s rccommcnd¿¡tion to dcny the Applic:ltion........""""""""'!"' I
5
C. Thc issucs,
Vf. DID'TIIE ED IìAVE S'I'ÀNI)I¡"G 1'O OPPOSE TIIE APPT,ICAI'ION?........' 6
A. Did thg t)D,s party st¿rtus clcpcncl on rvhcthcr thc ED rvas lit affcctctl person?..... 7
lì. Dicl the scopc of thc lùD's ¿ruthorit¡,inclutlc thc right tn p..r.Jt:tn opposing casc?.. 7
I
C. Was thc in[ornl¡¡tion that thc l]D prcscnted rvithin thc lirnits qf thc larv?.....'..........'. 8
Vtl. W¡\S TIIIS AN UNCONTIISTIÌD MAT'[ER'|""""""""""""' " :' I
9
vril. r)tD THI.I FID IIVIPROPEIìI,Y IìELY SOLÚILY ON'tllE MOpEL? I
¡\. 'Ihc l¡ullcn of proof an{ thc cvidentitry .st¿¡nd¡rd for scicntilic tcsti¡nony ...'.......'... 9
i
lì. Thc rcgulator-v schemc for thc Ctlmmission's issuancc of pcrniits .'.. I
C. 'I'hc dcternrination of thc lvnil:rbili$' of rvltcr for npproprintiirn...'.' I3
l). D iscussion. 5
l. Lcgnl issucs ....... l5
¡r. Docs the larv rcquire thc tlse of thc lVlotlcl? t5
b. If not, ntly rlthcr an:tl1'ticrrl trlols llc usctl'l '..... .. l6
(
)
( I
É
l'ag0 2
soAll l)ocKET NO. 582-08-l698 l'ROl'¡OSr\L FOR DECISION
TCEQ DOCKtil' NO. 2008-01 8l -wR
c Is thc use of thc Modcl r¡ppropri¡tc i¡t cv:rltrating a rcqu cst for ¡r snrall ¡ìm0unt
..17
of rvrrtcr?
....................... I 8
2. ùlr. .loncs' 'Jnrlys¡.s'....
.........,............. 20
IX. IS'I'fln MODDI, IìA'TI\LLY FL^\ryED'?
20
¿\. Naturaliz.etl florvs
2l
B. Impcrviouscovcr................
C. Wastervater trc¡tmcnt plant rcturn florvs """"'
23
/\. 'Il¡c El)'s argunrents
23
l. Docs thc Pcrmit authorizc l\tr. w:rre to appropri¡rtc watcr?
2. Docs thc Pcrmit ruthorizc Mr. Ware to usc slatc rvatcr?.... 2l
l]. iVlr. W¡rre's ¡rrgumcnts.......'.......
L Did thc ED tlisrcgartl I\lr. warc's priorit)' rights untler the P ir? .......,,.... .......,.. 21
2. Did thc ED m:rnipulatc thc priority dates of Mr' W¡trc's pplicntion so thrt its
r
priority rvoulrl bc infcrior to that of thc Br¿rzos Riv Authority's Pcrmit
26
application? ......'..
27
XI. CON(]LUSION
S()AI I DOCKET N0. 582-08-l(r98
'rcEQ DOCKIiT NO. 2008-0I8l-WR -1
.I'E
.,\PI'LIC¿\'TION OF IìIìADLI]Y B.
$ BI]F'ORE TIIÊ OFF-ICE
WAIIE'l'O i\lvlFlNl) $
WATEIì usE t,ElìÌ\{l'l'No. 5594 $ o
$
$ ¡\DMINISTIìA'l' [IEAIIINGS
PIìOPOSAL FOR DECISION
I. INTIì,OI)TJC'TION
llracllci, ll. Warc, Ap¡rlicant, seeks to amend his Waler tJse it 5594 (Pcrnrit). 'l'he
tcn-year tcrm Pcrnlit authorizcs hini to annually rvithdrarv lJ0 et 0l' watcr fìom thc
l,ampasa.s Iìivcr. 'l'hc amcndnrent rvot¡ld cither extcnd his tcrm it for another ten-ycar
pcriocl or conven his Pcrnrit 10 fl pcrpctual right.l In addition, Mr. arc seeks authority to
withdrarv 20 morc acre-feet ol' water annually a¡rd to irrigatc 3l morc ol'his l¡nn. 'l'he
llxccutivc Director (h.D) ol'the Texas Contmissicln on lìnvíronmcntal ity (Comnrission) and
thc Oflìcc of'l)ublic Intcrest Counsel (OPIC) opposc thc applicatiolr. e application should be
denicd.
II. PAIITIIÙS
'l'hc attorncys rvho appcnred in this proceeding u'crc (ìwcndolyn IIill Wcbb ancl Stcphon
Welrb fìrr Mr. Warc. Shana IIorlon and James Alclrcrvs antl potcntially gruater rvater ¿rvailabilit)-.7? 'l'he Comnrission gathcrs inl'onn¡lioll
alrout w¿ttcr rvithin thosc strcallrl'lo*'s by rclf irrg on gaugq inf'ornration. Whcrc gaugc
'' lo-t¡c \ 2()7 r9(bX2).
'" 'l'¡'. ll nt 27-.Ì-74.
'' l r. I lt 19,1.
)
I'nge l8
sO.\llDOCKllTNO.582-08-l(TgSPROPOS'^\LFOIIDIIC'lSlON
l'CltQ l)ocK ¡i]' NO. 200t1-0181-wll
I
in[orniation bascrj on thc
infornration is unavailable, thcn thc Conrmission rnay cxtrapolatc
¿is ''natt¡ralizecl llorvs.''78
rc*clings at ncarby gauging stations. a process proclucing clata knorvn
-l'hc v¿rlL¡e to thc Ctlmnlission bc-cattse it reflccts thc monthly
qvcragc of thc llow in a
clata þas
strcarìl rvithin a rcporting periocl'7')
ììinirlly, lv,ls. Alcxanttlcl ltann sot¡cttnc elsc.8')
i
Ms. Alexa¡clcr cx¡rl¿iucd that b1'examining an application in terrþs olthcsc
thrcc fàctors'
pcriod ol-record, locatiou. ancl priority clate, thc IID is able to cvaluate a[ applicatìon
olarty sizc
rclatecl her clforts to
in tcrms of thc currcnt conclitions presented. As an cxamplc, Ms. Alcxa¡iclcr
cxtminc Ìür. Warc,s application in tcrnrs of his cxpanded rec¡rtcst ol'150 acrc-lcct' thc original
'l'hc tvlodel is capablc
l-i0 acrc-ltct. and clinrinisherl anlounts as srrrall as l0 aclc-f'cct, o1'
cst
proclr.rcing a rcsult that projcctccl avnilability rvithotrt regarcl to thc siz'c o t' the rc(lu
I
I
2. Mr. .lonc.s' ln¡rlYsi.s :
i
l' aclditio' te arguing that thc clc.sign of'thc tvloclel rvas flarvcd, fvlr. .loncs also aclvaltced
his orvn arralvsis. I'¡at ar-ralysis rclicd in part on tt balancc bctrvccn tþc scopc ol'lvlr'.
W¿rrc's
rccìr¡r'st ¿rncl tltc then-cun'cnt rvithclr¿rrval ratcs ol'thc tlost proxitt-,nl
,ui,t.l. ririhts tlscrs alltl thc
inflorv ratcs
'* l'r. I ¿rr 77-ti I
:'' l'r llat i5.t
*(' lr ll irt 172
'\J
]
SOAII DOCKET NO.532-08-Ió98 PROPOSAL FOII DECISION l'ugc l9
TC¡lQ DOCKT:T NO. 2oo8-oltll-wll
fvlr, J<¡ncs cxaminccl thc clilTcrcncc betwecn thc amot¡nt ol r'vatc bcing rcportcd as ttsed
by Mr. Warc's nciglibors ancl thc atÌtount ol'rvater that thcy arc permittc to rvithclraw (morc thart
rcr¡uircd lbr his Pcnrtit);8l thc number ol'contplaints ab6ut lack ot'w r availability tìlecl by
clolvnstream pcrmit þoljcrs (nonc);s2 thc streamflolv gaugc readings ar lvfr. Ware's t'unn,
particular at Kcnrpncr, ctosest to Mr' Ware's dil'ersion point ( ;;8r the amount ol
inrpervious covcr ctcvclopecl since 1997 (substantial),84 and the volr-lmc rcturn t'lorvs creatcd by
w¿tstcwatcr trc¿ìtrnc¡lt plants (largc).85 lvlr. Jones easily concludcd sufficicnt amot¡nts ol
\vatcr wcrc availablc at lvlr. Warc's divcrsion point and that if tltc nr¡nission approvccl thc
¿ìtl'to¡nts that ilulr. \\'arc lracl rcqucstcd. clorvnstrcatn pcrmit ltoldcrs tvot¡ cxpcricncc no al
¡rermit.'.I1,,
"* ,io'lnc 297.1 ('1).
"'7
'l'r'x. Wn'l t:tt CoDf i s\ I l . l4l
/,/ urld l0
'f,\C ^NN.
297 4a(c)
"'*
tu"
t\
ld.
rr(i 'rl.y w^ t'tìR col)ti ANN. s{ I I ' li5(a)
Pngc 25
PIIO POSA L F'OtI DI]CIS ION
so,\H DOCKti'r NO. 582-0tl-l69ll
TCIìQ tx)cKtl'I NO' 2008-0181-wll
i
ltlltv irlclr"¡dc
to all typcs of ¡lcnuits, thc Çomnrissitltl
watcr that nlaY bc clivcrtccl'lll wirh rcspcct l2
restrictions to prolect thc priority tll'sctliot w'atur'rights "l
conditions ancl
limitation making pcrmits "suborclinatc
Iiach tcrn, ¡:rcnnit is subjcct to thc statutorv
'fhe and the gcncrallY intcrPret
to any scnior approptiativc rights"'lll ¡lhrase is urldetined'
l14 ln af'ñrmati sentencos, thc ordinarY
meanlng'
unclctì¡rccl lernrs accot'ding to their orclinary
lìcl¡'ing on that ordinary mcan the rulc makes tcnn
rrreaning ot'-,ir'y" is "cvcrv" or "all."ll5
pcrntits suborclinatc to all serrior rvatcr rights'
rrr 'ì't \. W,\'¡:t( Cot)t: li I 1.135(bX5)'
r-' .1.t.\. ll.l35l.'iii. lar' controlling thc issuancc ttllc'r.porirry pcrtnils' a clilt'crent
w¡\rr..r{ coDr, ^NN. $
^i.rx.
'l'r:x w,\'l'lìl{Col)l-:ANN.\
'rrr ll.lltlic) ltìnrphosisstrpplicdl i
'l'l'\, Wr{l l;tt C'¡'ccthe ItiDJ to apply the fìrnrlamental principal of''first in tinrc, tìrstiin right,'to thc watcr in
rhc Ilrazos Iìii,c¡'lJasin rvhich hc knou's to be available fìrr appropriation."l24 'l'hat firnciamental
principtrl prcvails in this casc, but not to Mr. Warc's adveurtagc.
lll Wirre [i,.r.,tl nt li. f-his clulc rvns includcd i¡r a cirali pcrrnit that hud not bccrr ar.lopred by the
Cttnttnis:;icln 'l'hc partics did not rJispulc that thc datc on rvhich the ßrazos Rivcri Aurholity'-s irpplicafion rvas
ildrninistrativcly contplctc was belorc thc datc vernbcr (r. 200(r. thc I:.D rccornme ntlcd dcrri¿rl ol'the AppliLation.
1
(] 3
t7 On Januar¡, 8. 2007. lvlr, Warc rcqucstcd a contcsted case hearin{ at SOAII'
i
Itt gn Janrrar\,?5.20011, thc Conrrlission dircctll'rcf'crrcci the casq to SO,'\f I lìlr a lrearing
()n Ilìc rtrcrils.
t9 On April l, 200f1, thc SOAII adrninistrativc law jtrclge (At'J) convcnccl a prclirninarY
hcaring ancl took .!urisdiction.
20 On January 12, 2009, tlte Brazos Rivcr Atrthorit¡ rvtts grantcd t right to rvitltclraw ¿ts a
prtltcsting partY.
'crllorving
2 on ocrober l. 200tì, rhc ¡\[-J issr¡cd an ordcr f telcphonic prchearirrg
conll.rcncc ancl notilìetl thc partics that thc hcaring on the nrerrits uld be held lvlarch I8
through 19. 2009.
?2. ¿\t thc rcqucst ol' lVlr. Warc. the hearing on thc mc'rits rvas rcschc'clulccl to convcnc
October 29 throrrgh 30, 2009
'I'he hcaring cOlrvclred on octobcr 28, 2009. arrcl acljrlttrnecl oll October 29, 2009. 'l'hc
:J
I
arlnrirristmrivc rect)rd closed orl f)eccmt:er 21,2009. alìcr closi n g argunlcnts ancl rcplics
ucrc fìled. I
I
EI)'s recontmcnduliott lo tlctt¡t llrc Applicoliort i
i
24. Alier lVlr. Warc filccl ¡is Application in 2005, the LìD's hydroltjg.v- tc'anr tlclcrtnincd thal
I
'.littlc to tìo watel"' w¿ìs available at Mr. W¿trc's tliversion pointlon thc Lampasas Rivcr.
'l
u,ithout rcgarcl to rvhcthc.r the amended l)ennit rvould havc a pcr¡lctual or limitccl tcnrr.
) 'l'hc Iìt)'s surl¿rcc rryarcr ¿rv¿rilability ancl intcrstatc.ot't'tpn,jts tc¿ìm ctlnfirmccl thc
lri,clrr:l'91,tciutì's conclusit>n in a rvatcr availatrility rct'icw,t,Lut,, that calculatctl thilt
illsul-trcicut watel.w¿ts available at lv{r. ware's clil'ersion poirrt to strpport crcll thc
origirral I 30 lcrc-lcut ol'tcl'm-lilnitecl appropriation righls'
-)
(
}
26. lrl rcconr¡lrcnding denial of thc Appplication. thc fiD reliecl on Conlnrissior'¡' s Wate'r
'l'hc cal
r\vailabilitl, MocJel ft¡r thc lJrazos lìiver basin (Model)' rulation used a historical
pcriotl olrccorclol1940 to 1997
27 Although prcvious r\'¿ltcr availability ¡lrodcls !\'cre clcvc and uscd b;" thc'
Cornnrission. the currcnt Ìvloclel has been in ttse sincc 2001. Comnrissit-rn has rclied
orr thc Motlol in evaluating all applícations for appropriative s sincc then
2tt [¡r cvaluati¡rg tlrc Application r¡'ith thc'lr4oclcl. thc l]D usecl ¿.t iority datc of January 5,
200(r, thc datc orl rvltich tlrc i\pplicatitln rvas adrnirristrativcly plctc
29 'l'hc Motlcl prcclicts that Mr. W¿rre's cttrretlt rcqucst coulcl bc slìed at ¿ 100"/t lcvcl ur
nn basctl on thc rcaclings at nearby gauging stations, ir proccss producing data
known a.s "lrirturalizccl f'ìr)rvs."
:i9 Natunrlizcd l'l<¡w data has value to the Co¡nmission bccause it rcflects thc nronthly
avcragc ol'thc llorv in ¿r stre¿rm within a rcportirrg pcriod.
10. 'l'he lvlodcl takcs into iìccour'¡t nn applicatiort's priority date in cvi luating a rec¡uest.
4l 'l'hc rolc'ol'the priorit¡'datc is to rlctcrntinc thc scniorityr st¿tttls ol'.¿t p¿Ìrticulitr
ap¡r'opliativc right prcviou.sl¡' gircn b¡' thc Conlmissio¡l
42 l)¡,exanrining iur application in ternrs of-pcriocl ol'rccolcl. locatilrn, ancl priority n ol "ncrv \vâter," i1 it wcrc provcd to cxisl. lvoulil bc subjcct to all prior
ruppropriation rights ol'seniol u,atcr rights ltolder ancl ct>ulcl not b,lc trcatccl as av¿¡ilablc [or
ncw allocltirln.
i
'l'hc lJrazos Iìivcr At¡thority's lctru'rì f lorvs beconrc ¿rvailab!c only itt thc lirrthcst
dorvnstrc¿trn point in thc tlasin.
I'riorily dutcs
I
16. 'l'hc priorin' illtc ol' Vlr W¿rrc's currurt Pcrnrit is .lul,v l, I 997 anrl itpplics to "¿ll
cx tcnsl()lls
I
( (
ì
) -,
I
47 l'hc priority clatc in thc Permit ha.s no rclation to applications fì)r ttcw pcrnrits or lo äny
¡lttrcr qrhcr rhan csratrlishing whcn the permir holclcr begttn tlrc åppropriation ol'\\ratL'r or
rvlrcn thc ¡lcrntit holclcr acc¡trircd the ríght to tlsc thc water.
'
48 'l'hc priorit¡ datc ol-\4r. Warc's application rvas establishccl on thc tlatc on *'hich it
bccrunc actntinistratír,cly contplctc', January -5. 2006. I
'['hc l]razos Iìive.r ¡\uthority is sceking a
19 ¡rcnnit l'rom thc Comrnission to Ítppropriatc atl
adclitional 421.449 acre-tèet pcr year of'urrnppropriatecl watcr. o¡ scvcral thous¿tnd tittrcs
thc anrount thut Mr, Warc is scc-king ar¡thority to appLopriatc liorh thc same rivcr basin.
i
.50
'l'hc'priority'cl¿rte ol'the application olthc ßrazos Rivcr Â,uthorityi i¡; C)ctobcr 15,2004.
5l 'l'lrc priorit¡' clatc of thc Ilrazos River Authoritl"s applicatr is earlicr th¿rn that ol'
Vlr. Warc's ap¡rlication.
I
5l l'hc l:f) cngagccl in no manipt¡l¿rtion of thc priority datcs in rccr ('lr\C) ch. 295, subch. C; ancl'l'l;x. (ìov. Col)li z\NN. .s$ 2003,051 and
i
1001.052.
-) SO¡\ll has iurisdiction lo concluct a hearing and to prepírrc it i'roposal lbr Decision i¡r
i
c0¡trcstccl cascs rcfcIrcd b1' l'ClrQ. 'l'l:X. (ìflv. Conr: ANN. \ 20qi.47.
+
'['lre i\¡lplie¿rr.ion bcciurc aclnlinistrativcl¡' corlplctc tln .lanuaryr -5. 200ó. 'lt;\'. \\t,rt'l'n
ó
(
)
5. 'l'[c Apptication wâs proccssed and tlrc procecdings tJcscri in this Orclcr wcrc
concluctecl ilr ¿rccordance rvith a¡l¡rlicable stattttcs and thc rulcs of thc Commissivicling infìrrrnation to conrplclc thc administrativc rccord." r. W,rr riR Cìot)r-r AN\
5s _5.228(c).
ll In ¡r contestccl lrcaling, thc Ilt)'s prcscntation is [illritcd to "inlir ation clevelopcd by thc
Conrnrission . , ."'l't,x. Wn'l'uR Clot)n ANN. \s 5.228(a).
t2 I¡ ¿r corrtcstcrl lrcaring. thc IiD niay proviclc inforntation that opposcs ¿ìll application. as
lonq as thc inlbrrnation is rvithin thc liurits of thc law. TI'x. W,r'rl'R Clor)ß ÂxN, 5s I 1.133.
l
ll ,,\ll partics to a contcstcd casc havc thc right to prcscnt a clircct cåsc ancl to cross-cx¿tnrinc
i
thc o¡rposing part)"s eviclence. 30 l'AC $ 80.1 l5(al.
i
I
l4 't'hc IID has starlcling to rìppear ¿ìs a part,v in this proccccling ancl rf'as attthorizcd to prcscnt
i
thc (\lllllrissioll's eviclcncc a¡rd nrs,urlcnts in opposititln to Mr. Wtlrc's casc.
a
(
3 I
3
15. Ân applicant nlay requcst that an npplication bc rcnlanded ro hc Lll) lìrr action as an
r.¡ncontcstc(l rnattcr if' (l) all timcly hcaring rcqr¡csts har.e bcc¡i w,ithrlr¿ru,rr or cleniccl or
(2) all partics to a contestcd casc rcach a settlcnrenl so that lìtcts or issucs rcnrain
controvcrtcd. 30 'lAC $ 80. I 0l
I 6. A hearirrg was rcquirccl in this casc bccause thc ED rcmainccl a y to a contcstecl c¡tso
atìcr thc Ilraz.os River Authority withdrcw its opposition and r,rsc lhcrc w¿rs not a
scttlcmcnt bctrvccn the rcmaining partics.
17. Scicntifìc tcstimony presented by a pnrtv must be olf'cred truo gh the tcstinrony, ol an
cxpcrt. and that testimony nìust be basecl on a rcliablc l'ounclatio 'l'nx. Iì. I\'rr>.
702
Itl. A lindcr of'lact is to clctcrminc thc rcliability, of'thc cvidcncc, and "[u]nrcliablc cxpcrt
testinrony is not cvidencc," (ir¿¡.r:; t'. Burt.l49 S.W.3cl 213.237 cx. Âpp.--l;ort Worth
2004. pct. dcnicd)
t9. lir c'stablish the rcliability ol'an expcfl's tcstimony,. an of'li'ring rty nlust lìrst cstablish
thc rcliability ol'thc analysis that thc cxpctl uscd in rcachi his couclusirtns. Six
¡ronexclusivc l'actors arc uscd in cletcrnrining rvhctlrer scicntilìc nlo¡ry is rsliablc
( l) thc cxtctlt to whích thc thcory has bccn or can bc tc cl: (2) thc cxtcr'¡t
to rvhich thc tcchniquc rclics upon tlrc subjectit,c int rctatioll of thc
cxpcrt; (3)r.vhcthcr tlrc thcory has becn subjcctccl to cr rcl'icrv and
publication; (4) the technique's potcntial r¿rte ol' crrclr (5) u,hcrhcr the
rurtilcrlyiuu thcory or tcchniquc has lrcclt gcncrall¡, acc d as valid by thc
lclcr,¿rnt scicntif ic corlmunirvl and ((r) the non-.ir-rdicial t¡ s that h¿rvc lrccn
rnaclc ol'thc' theory or technique
(iro:;.s v IJurt. 149 S.W.jd at 237. citrng À/cn-ell Drnr l,hctrilt.t.., lnc.. t,. Ilt¡,ncr. g53
s.\\/ 2d 706,114 (-l'c'x. 1997). t'ert. clcnictl,5?i U.S. lllg (lÇls¡ anct E I lu prntt clt,
Nantr¡urs <( ('¿r v Robin:;on,923 S.W 2d 549,557 ('l-cx. 1995)
l0 Vlr. Warc. cìid not cst¡rblish rhat rhc nlcthocl usccl by \,,lr..l (ìn cs. \,1r. Warc's expcrt
rvitncss. u,its rcl iablc.
tÌ
'l i)
J
. 'l'hc rvatcr rty of'thc statc, ancl thc
2I ol'cver), fìow'irrg rivcr in thc Statc ol"l-cxas is thc
C'onrnrissir>n is the statc's agcnt for the rcgulatio¡r oI its n'ater EX. WI\ IIiIì COI)I| ANN
$ l l .02l(a).
'l'hc
22 Conrnlission has thc authority to allow pcrsons to a¡:propri atc statc watc'r lbr snccifìc
I
tuscs. '['t:x. \\/;\'t'Dlì COnn ANx. N I 1.022.
I
'l'hc Conrnrission nìay grmt permits to applicants wlro seck to up propriate una ppropri atcd
-frx. Wn'r'¡.tì
sr¿rtc watcr. CoDE r\Nx. $ ll.l24.
24 'l'hc ¿¡mtlunt oln,¿rtcr lor which thc Comnlission nray grant penn ts mav not bc'more thirn
í.s availablc. 'l'Ix. W¡\t'riR Collr, ¿\rx. s\ I 1.023(cr).
2 ) In l9(r7. the 'l'exas lcgislaturc ab¿tncloncd thc state's l'ornrcr sy,'slcrn ol'recognizing both
I
ripirriarr antl appropriative rights. In re lcljuclic'¿ttit¡n ol'Iú'utlr Ili,qhts oJ'ßrunls Ill
S'ag,ntant ttf llt'uzos River lJa:;in,7,16 S.W,2 d207,209 ('l'cx. l9S8f.
i
I
26 ln placc of thc f'ormcr srstcrn. tll e legislaturc aclopted "an orclcf l¡, fìrrunr and procedurc
fìrr thc [(lonrnrission's] ac'ljudicati on ¿rncl achlinistration ol' rvatcri riglrts." l)ruzr¡.r lll, 746
S.W.2(l ¿rt 209.
'27 'l'hc (lorrrnission is rcqLrircd to "proviclc ccrtaint¡" in u,¿rtcr
mar ragcrì'ìc11t" lry c'valuuting
thc st¿ìtc's rnajor river btsins. '['rtr. \\¡,r't'riR C]oot, ANN. I t.02.iitcl-2).
5s
28 l;or all pernrits. thc holclcr has thc right to appropriatc rnatcr o,rl¡4 to the cxtcnt and lbr thc
:
purposcs statecl in thc pcrnrit ancl sub.iect to the protcction ol'th{ holdcrs of'scnior u,ittcr
rights. 'l'ux. W,\'l'utì Col)l Aln*. g$ I 1.135(a) ilncl l-ì51. i
i
l9 ,,\n "appropriatil'c ri-qht" is ttle right to inrpound, tlivcrt. r,or.f ,rk., or usc a spccilìc
qLrirrrtity crl'stn(c \\,ater ¿ìcquirccl by larv. 30 1'¿\C $ 297.1(4). I
1
j0 I'he holclcr"s rights to appropriatc \\'atcr uray bc afftctcd bV rhcjí.ì¡noLurts that thc holclcr
uctuall\' usus ()r can beneficially use. ancl "all \vatcr not ,n I urct.l is consiclcrcd not
applopriatccl." 'l'Ix. Wtrr,lr Clonlt ÂNN. N I 1.025.
()
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3t lf thc holdcr of a pernrit docs not l'rcncfìcially use his rvn tcr, thcn thc right of
appropriatior: is consiclered to bc not pcrlccted. 'fux. Wn'rnn Cop t ANN. s\ I 1.026,
I
i
)2 'l'hc Conrnrission has cliscrctionary authrlrity to tcmporarilyi rr..allocatc unpct'lèctccl
I
appropriatil'L- \.vater rights to persons othcr than thc rcgular pcrrfit holder. ,{n applicarrt
ntay scck a tcrnl pcnlit. a pcnlit that is issuccl fìrr a tcrnr jof years nrthcr than in
pcr¡rctuitv. 'l'r:x. W;r'r't:tr (Ìrot,: ANN. çrS I l.l:i8l(a) ancl I 1.026. i
I
-) -) r\ Lcnn pcrmit allorvs an applicant 1 be concluctccl
-l'r;x.
b1,thc llD. W,rt'rin Cooni\Nx. ¡s 5,2291(tt).
4:l 'l'hc lìl) has the authority to rcly on scientilic data analysis in nl-orcing thc tcrms of a
pcrnrit and in prescnting infbrnration about an npplication lìrr a pcrrttit. 'l't,x. W.r't'f:n
C,'¡;r, AXX. \s ,í.230.
.{4 r\ contestiug pc'rrlít holdcr rnay rely on "rcasonablc pro.icct ons bascd on acccptccl
n'ìùtlìods." arrtl an applicant and thc lìl) nray do the samc. i0'l-A [' ò 2e7. re(bx2).
'l'hc
45 Courmission uray usc approximatc ¡rttnrbcrs in estinlating rvi ¡tcr availability irr pcrrnit
application procccdings. 30 l'AC $ 297.42(c).
46 Iror cvcr'), pcrnrit, a priority tlate is establishecl firr the appropriaiion of ,,r,atcr anrl firr thc
"l'EX. W/\'t-tjRCODE¡\Nt.
cl¿rinrant's right ro usc thc watcr. rS f f ,i+f .
,
17 'l'hc nlcusuring clate fìlr thcsc priority clatcs is thc chtc of'fìlinig ol'un aclnlinistrativclv
-ì'¡\C
conrplctc ayrplicatiurr. i0 ¡t 297.44(c).
-l'hc
.18 clltc on rv'hich a priority clalc co¡rtcs into bcing is "[rv]hcn t Conlnission issues the
'l'¡\C rs 197.-l.l(c),
¡rcrnrit -i0
il
(3
49 r\n applicant's right to takc atrd usc watcr is linlitecl "to thc ex( ei'rt I
anr'l purposcs statcd in
rhe ¡rcrnrit." 'l'ux. Wn't'l,n Coor ANx. $ I I .l 35(a). i
I
I
I
.50 A pcrnrit rlny incluclc spccial conditiorts that limit thc total am oi-tnt ol' rvater thut rnay bc
clivcrtcd. 'l'r:r. W,rrER CoDE AxN. $ I L 135(bX5).
I
5l With rcspcct to all types ot'permits, the Comnrission ntay inclrJdc "...conditionsancl
rcstrictions. , . to protect thc priority oIsenior rvatcr rights." 'l'rix. W.r'r'un (ìoor Alx. t\
il.r35r i
52 liuch tcrnr Jrcrnrit is sub.icct to thc unique stiìtutory linritatiln making tcrm pennits
I
"subordi¡iurc to any sc'nior npproprialive rights." 'l'nx. Wn't't'r¡ Crir¡ri i\ I l.l38l(d).
i
53 Courts gcncrally intcrprct undefìncd tcnns accorcling to their Jrdinary rtte'itning, 'fax.
I
(ìov'r' Clr; ANx
s\ I l.l38l(cl); i0 't'¡\c { 297.19(a).
-i6 \4r. Warc f ¿rilctl to carry lris bulden of proving that sul'lìcicnt tcr cxists in thc IJraz.os
Ilivcr basin or that all ipplicablc st¿rtutory and regulatorv rcqur rncnts hnvc l'lccn n.ìcl to
warrant issuirrg to hinr the proposecì \\/ater [,sc l)crnlit No. 5594uir,
51 I)ulsua¡lt Lo thc tuthuritl,ol, and in ac'cordancc rvitlr. a¡rplicahlc l¿rrvs ancl regulations, the
rcc¡ucstc-cl Pcrnrit should not be grantcd.
-5lt. [)r¡rsu¿urt to 30 'l'rix. Aotr,rtN, Coon ANN. 5$ 80.23(dX2). thc Excc:utivc Dircctor ancl
Of'tìcc of I'ublic lntcrest Clounscl n.ìay not bc asscssccl u,ry p,rrdio,'r ol'thc trunscript ancl
rcpclrtirrg crrsts
I2
J
NOW, 1'll0lìtill'ollli, llE r1' 0RDFllìtiD IìY 't'tìll ]'EXÂs cOillì\llssl0N oN
¡iNVilìONMEN'r^L QU^LITY, IN ACCOIIDANCE Wlrll 'l' ESIì þ'INDINGS OF
I.-AC''I' ,\ND CONCI,IJSIONS OF T,AW THAT
l . 'llrc application ol'Bradlcy B. Warc lo atncnd Watcr [Jsc Pcrnrit o. 5594 is dcniccl
1 'l'hc Applica¡rt shlll pay the cottrt rcporling ancl transcript costs tlris casc
'l'he Chief'Clerk of thc Commission shall lorward a copy ol'tl''i Ordcr to all partics, attd
3.
no umcnchnont to Watcr Usc I'ermit No. 5594 shall be issued
+, ¡\ll othcr ulotions. rcqLlests f'or specifìc lrinclings ol' Fact or onclusions tlf' Law, antl
orþcr rcc¡r.rcsts lìtr gcncral ancl spccilic relictì il'not expressly grairtcd. ¿rrc cicnicd fbr r.r'anl.
rll'nrcrit.
5. lt'any provision. sc¡ltctlcc, cl¿tuse, or phrasc ol'this Orclcr is iìrr)' rcíìson hclcl to bc
t'
invalicl. tftc invalidity ol'any pclrtion shall not afl'ect thc valiclity l' thc rc'nraining portions
of'this Orclcr.
'l'lrc cl-lcctivc clats ol this Ortlcr is thc clatc thc Orcler is final, as proviclccl by 30 't'AC
6.
\ lì0.271 ancl'['¡x. Cþ
James Aldredge, Staff AttomeY Admini strative Law Judge
Texas Commission on Environmental Quality State Offrce of Administrative Hearings
Environmental Law Division MC-173 P. O. Box 13025
P.O. Box 13087 Austin. Texas 7 87 ll-3025
Austin, Texas 787 1I-3087
* Courtesy Copy via inter-agency mail
(
!
I )
Tpres ComIISSIoN ox ExvIRoNMENTAL QunurY
AN ORDER Concerning the Application of Bradley B. Ware to amend
water use Permit No. 5594; TCEQ Docket No. 2008-0181-
WR; SOAH Docket No. XXX-XX-XXXX
On April 14, 2010, the Texas Commission on Environmental Quality (TCEQ of
'Ware
Commission) considered the application (Application) of Bradley B. to Amend Water Use
Permit No. 5594 (Permit). A Proposal for Decision (PFD) was presented by Paul D. Keeper, an
Administrative Law Judge (ALJ) with the State Offrce of Administrative Hearings (SOAH), who
conducted a hearing in this case from October 28 through October 29,2009, in Austin, Texas,
After considering the ALJ's PFD, the Commission adopts the following Findings of Fact
and Conclusions of Law:
I. FINDINGS OF FACT
General Findíngs
'Ware
1. The applicant is Bradley B. Ware. Mr. owns a 261-acre farm on the Lampasas
River, about l5 miles southwest of Killeen, Texas.
2. Mr. Ware's street and mailing address is 911 Gann Branch, Killeen, Texas 76549.
3. Mr. Wa¡e's farm is located in Bell County, Texas, and is r¡'ithin the Brazos River basin.
History of the Pernút
4, On November 7 , 1997 , the Commission issued Mr. Ware the Permit for a ten-year term.
t
( I (
ì
5 The Permit authorized Mr.'Ware to divert and use 130 acre-feet of water annually from
the Lampasas River to irrigate 100 acres.
6 The Permit also established July I , 1997 as "the priority date of this permit and all
extensions hereof . . . ."
7 The Permit was to expire on November 7, 2007, unless before that date, Mr. Ware
received the Commission's approval to extend the term or to convert the Permit to a
perpetual right.
8 Mr. Ware's rights under the Permit remained in effect pending a hnal administrative
ruling on the Application.
9 During the twelve years in which Mr, Ware has had irrigation rights, he has farmed hay,
pumpkins, wheat, sorghum, oats, and winter peas.
10 Mr, 'Ware has tried to impound his water by installing six or seven earthen tanks, but the
composition of the soil limits the amount of water that the tanks will retain.
11 Mr. Vy'are has purchased 100 acre-feet of water rights and installed 8,000 to 10,000 feet
of two-inch pipes, plus an eight-inch pipe to a central pivot system.
T2 On November i5, 2005, Mr. Ware timely f,rled his Application to: (1) either extend his
Permit for another ten-year period or convert his Permit to a perpetual right, (2) withdraw
20 more acre-feet of water annually, and (3) irrigate 31 more acres of his farm.
13 On January 5, 2006, the ED determined that the Application was administratively
complete.
14. On June 7 ,2006, the Brazos River Authority contested the application.
15 OnNovember 4,2006, the ED's surface water availability and interstate compacts team
completed a water availability review and determined that there was not sufficient water
available at the Applicant's location to support the requested demand,
16. On November 6, 2006. the ED lecommended denial of the Application.
2
,,
( tJ
-\
l7 On January 8,zOOi , Mr. Ware requested a contested case hearing at SOAH'
On January 25,2008,the Commission directly referred the case to SOAH for
a hearing
18.
on the merits.
On April 3, 2008, the SOAH administrative law judge (ALJ) convened a
preliminary
19.
hearing and took jurisdiction.
On January 72,2009, the Brazos River Authority was granted the right to
withdraw as a
20
protesting Party.
21. on october I, 2008, the ALJ issued an order following a telephonic prehearing
be held March 18
conference and notified the parties that the hearing on the merits would
through 19,2009.
22 At the request of Mr, ware, the hearing on the merits was rescheduled to convene
October 29 through 30,2009.
23. The hearing convened on October 28,2009, and adjourned on October
29,2009' The
and replies
administrative record closed on Decemb er 2I,2009, after closing arguments
were filed.
ED's recommendøtíon to deny the Applícatíon
24. After Mr. Ware filed his Application in 2005, the ED's Surface Water and Interstate
Compacts Team determined that "little to no water" was available
at Mr' Ware's
amended Permit
diversion point on the Lampasas River, without regard to whether the
would have a perpetual or limited term.
the
25. The ED's Surface Water Availability and Interstate Compacts Team confirmed
that
hydrologist's conclusion in a water availability review memo that calculated
insufficient water was available at Mr. Ware's diversion point to support
even the
original 130 acre-feet of term-limited appropriation rights'
/\
\J
)
26. In recommending denial of the Application, the ED relied on the Commission's Water
Availability Model for the Brazos River basin (Model), The calculation used a historical
period ofrecord of 1940 to 1997.
27 Although previous water availability models v/ere developed and used by the
Commission, the current Model has been in use since 2001. The Commissionhas relied
on the Model in evaluating all applications for appropriative rights since then.
28 In evaluating the Application with the Model, the ED used a priority date of January 5,
2006,the date on which the Application was administratively complete.
'Ware's
29 The Model predicts that Mr. current request could be satisfied at a I00Yo level in
none of the years and at least 7 5o/o in 5.2%o of the years.
Standing
30. The evidence presented by the ED at the hearing on the merits was generated by the
Commission or was offered to support the integrity of the Commission's underlying
information.
The reliability of the Model
31 The Model is designed to be the most accurate method available to the ED without regard
to the size of the request for water'
32. The design relies in part on the Model's use of a period of record.
a1
JJ The period of record gives the Commission a set of historical boundaries ranging from
the most severe basin-wide drought to the most severe flood periods ever recorded.
34 The historical period was developed by the Commission in conjunction with other state
agencies and outside consultants'
35 The Model relies on an applicant's particular location within a river basin to determine
availability.
4
r-)
36 If an applicant's diversion point is located within a large drainage area, then the applicant
would be able to rely on large streamflows and potentially greater water availability.
37 The Commission gathers information about streamflows by relying on gauge information
and data from other sources.
38 Where gauge information is unavailable, then the Commission may extrapolate
information based on the readings at nearby gauging stations, This type of adjustment
occurs during the creation of the naturalized flow data set.
39 Naturalized flow data has value to the Commission because it reflects the flows that
would have occurred without the impacts created by human diversions and storage of
water,
40. The Model takes into account an application's priority date in evaluating a request.
4t The role of the priority date is to determine the seniority status of a particular
appropriative right previously given by the Commission.
42 By examining an application in terms of period of record, location, and priority date, the
ED is able to evaluate an application of any size in terms of the current conditions
presented.
43 At this time, the inclusion of more recent gauge flow data would have no effect on the
range of data reflected in the historical period of record used in the Model.
14 The addition of "new water," if it were proved to exist, would be subject to all prior
appropriation rights of senior water rights holder and could not be treated as available for
nerv allocation.
45. The full amount of the Brazos River Authoritl"s requested return flows become available
only at the furthest downstream point in the basin; diversions at other points are possible
due to specific facts and circumstances of that application.
5
\
.! )
Priority dates
46. The priority date of Mr, Ware's current Permit is July 7, 1997, and applies to "all
extensions...."
47 The priority date in the Permit has no relation to applications for new permits or to any
matter other than establishing when the permit holder began the appropriation of water or
when the permit holder acquired the right to use the water.
48 The priority date of Mr. Ware's application was established on the date on which it
became administratively complete, January 5, 2006.
49 The Brazos River Authority is seeking a permit from the Commission to appropriate an
additional 42I,449 acre-feet per year of unappropriated water, or several thousand times
the amount that Mr. Ware is seeking authority to appropriate from the same river basin.
50. The priority date of the application of the Brazos River Authority is October 15,2004.
5l The priority date of the Brazos fuver Authority's application is earlier than that of
Mr. Ware's application.
52 The ED engaged in no manipulation of the priority dates in recommending the denial of
Mr. Ware's application.
II. CONCLUSIONS OF LAW
The Commission has jurisdiction over the determination of water rights in Texas rivers
and streams. T¡x. WnreR Cooe A¡m. ch, 1i.
2 Notice was provided in accordance with TEx. W¡.r¡R CooE A¡n, $ 11.132,30 Tex.
Aovn-r. Cooe (TAC) ch. 295, subch. C; and Tex. Gov. Coop Al.rN. $$ 2003.051 and
2003.052.
J SOAH has jurisdiction to conduct a hearing and to prepare a Proposal for Decision in
contested cases referred by TCEQ. T¡x. Gov. Coo¡ Al.Jl.J. $ 2003.47 .
o
J
4 The Application became administratively complete on January 5,2006. Tex. Wnr¡n
Coop AxN. $ I 1.141 and 30 TAC $ 297,44(c)
5 The Application was processed. and the proceedings described in this Order were
conducted in accordance with applicable statutes and the rules of the Commission and
SOAH. Tex. WnreR CoDE A¡n'¡. ch. 11; 30 TAC ch. 80, i TAC ch. 155,
6. Mr. Ware held the burden of proof. 30 TAC $ 80.17(a). Mr. Ware did not meet his
burden.
7 Any person may appear at a hearing at which the issuance of a permit is to be considered.
Tex. WersR CoDE At tN, $ I 1.133.
8 The ED is required to participate as a party in contested hearings relating to applications
about water rights. 30 TAC $ 80.108(bxl).
9 The ED is required to represent the Commission in hearings that raise matters that affect
the public's interest in the state's environment and natural resources, including matters
that have been determined to be policies of the state. T¡x. W¿,rsn Coo¡ A¡m. $ 5.228(a),
10 In contested case permit hearings, the ED's presentation is limited to "the sole purpose of
providing information to complete the administrative record." TEX. V/¡,reR Cooe AxN.
$ s.228(c).
11 In a contested hearing, the ED's presentation is limited to "information developed by the
Commission . . . ." Tpx. WnreR CoDE Ar.w. $ 5.228(a).
12 In a contested hearing, the ED may provide information that opposes an application, as
long as the information is within the limits of the law. Tpx. WereR Coop AwN.$ 11.133,
l3 All parties to a contested case have the right to present a direct case and to cross-examine
the opposing parry's evidence. 30 TAC $ 80, I 15(a).
7
J
t4, The ED has standing to appear as a party in this proceeding and was authorized to present
the Commission's evidence and alguments in opposition to Mr. Ware's case.
15 An applicant may request that an application be remanded to the ED for.action as an
uncontested matter if: (1) all timely hearing requests have been withdrawn or denied or
(2) all parties to a contested case reach a settlement so that no facts or issues remain
controverted. 30 TAC S 80.101.
16. A hearing was required in this case because the ED remained a party to a contested case
after the Brazos fuver Authority withdrew its opposition and because there was not a
settlement between the remaining parties.
17, Scientific testimony presented by a party must be offered through the testimony of an
expert, and_,that testimony must be based on a reliable foundation. Tex. R. Evto. 702'
18 A finder of fact is to determine the reliability of the evidence, and "fu]nreliable expert
testimony is not evidence." Gross v. Burt,149 S.V/.3d 213,237 (Tex. App.-Fort V/orth
2004,pet. denied).
t9 To establish the reliability of an expert's testimony, an offering party must first establish
the reliabitity of the analysis that the expert used in reaching his conclusions. Six
nonexclusive factors are used in determining whether scientific testimony is reliable:
(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
putlication; (4) the technique's potential rate of error; (5) whether the
irnderlying theory or technique has been generally accepted as valid by the
relevant scientihc community; and (6) the non-judicial uses that have been
made of the theory or technique.
8
()
Gross v. Burt, 149 S,W.3d at 237, citing Merrell Dow Pharms., Inc' v' Havner,953
S.W.2d 706,714 (Tex. 1997), cert, denied,523 U'S. 1119 (1998) and E'1. du Pont de
Nemours & Co, v, Robinson,923 S.W.2d 549, 557 (Tex' 1995)'
20 Mr. Ware did not establish that the method used by Mr. Jones, Mr. Ware's expert
witness, was reliable.
21 The water of every flowing river in the State of Texas is the property of the state, and the
'W¡'rEn Coo¡ AtçN.
Commission is the state's agent for the regulation of its water. Tex.
$ I 1,021(a).
22. The Commission has the authority to allow persons to appropriate state water for specific
uses. TEx.'W¡.ren Cooe AIIN. $ 11.022.
)7 The Commission may grant permits to applicants who seek to appropriate unappropriated
state water. Tex. Wnrnn Cooe ANl. $ Il'I24.
24. The amount of water for which the Commission may grant permits may not be more than
is available. Tpx. Weren Cooe AwN. $ 11'023(e).
25. In 1967, the Texas legislature abandoned the state's former system of recognizing both
riparian and appropriative rights. . In re Adjudication of ll/ater Rights of Brazos III
Segment of Brazos River Basin,746 S.W '2d207,209 (Tex' 1988)'
26 In place of the former system, the legislature adopted "an orderly forum and procedure
for the [Commission's] adjudication and administration of water rights'" Brazos III,746
S.W.2d at209.
27 The Commission is required to "provide certainty in water management" by evaluating
tlre state's major river basins. Tex. W¡,rEn Copp Ar'r¡¡. $ 11.0235(d-2)'
28 For all permits, the holder has the right to appropriate water only to the extent and for the
purposes stated in the permit and subject to the protection of the holders of senior water
rights. TEx, WnreRCoDEAr.w.$$ l1'135(a) and 1351.
9
(
t
r'
29. An "appropriative right" is the right to impound, divert, store, take, or use a specific
quantity of state water acquired by law, 30 TAC ç 297 .1(4).
30 The holder's rights to appropriate water may be affected by the amounts that the holder
actually uses or can beneficially use, and "all water not so used is considered not
appropriated." TEX. WnrpR CooE Am. $ 11.025,
3l Ifthe holder of a permit does not beneficially use his water, then the right of
'WnreR
appropriation is considered to be not perfected. Tex. CoDE A¡w. $ I1.026.
The Commission has discretionary authority to temporarily reallocate unperfected
appropriative water rights to persons other than the regular permit holder. An applicant
may seek a term permit, a permit that is issued for a term of years rather than in
perpetuity. Tpx. WnrpR CoDEAttN.$$ 11.1381(a) and 11.026.
aa
JJ A term permit allows an applicant to use water rights that have not been perfected by the
holders. A term permit creates derivative rights, not original rights, so that the maximum
use of water may be achieved. TEx. W¡.IER CoDE At\t{. $ 11.I23.
34 The Commission may deny an application for a term permit if the permit will jeopardize
financial commitments for water projects or if the permit will prevent the holder of the
senior appropriative right from beneficially using his rights during the period of the term
permit. Tex. WerER CoDE Awr. $ 1 I . 13 8 1(b) and (c).
35. If the Commission approves a permit, then the rights that it confers are subordinate to any
senior appropriative rights. TEx. WnreR CoDE A¡nç. $ 1 1 , 13 81 (d).
36 The Commission may issue a term permit "when there is insufficient unappropriated
u'ater in the source of supply to satisfy the application." 30 TAC ç 297 .19(a).
37. A holder of a senior appropriative right may challenge an application for a term permit by
showing that the Commission's issuance of a term permit would adversely affect the
holder's beneficial use of its senior rights, In proving this adverse effect, the holder may
use as its proof: water use projections in the state or regional water plans, economic
10
)
indicators, population growth projections, electrical generation needs, or "other
reasonable projections based on accepted methods," 30 TAC ç 297.19(bX2).
38 The Commission may deny an application if the proposed permit would be detrimental to
the public welfare. 30 TAC ç 297.19(bX4).
39 In 1997, the Texas legislature mandated the Commission to adopt an updated water
availability model (Model) for six river basins in Texas. Tex. WereR Cooe A¡w. $
16.012(Ð.
40 For direct diversions from a stream without sufficient water storage facilities, an
applicant must prove that approximately 7 5o/o of the water requested is available
approximately 75o/o of the time when distributed on a monthly basis and based on the
available historic stream flow record. 30 TAC ç 297.42.
4l Neither the ED nor an applicant is required to use the Model in determining whether
water is available in each river basin in Texas.
42. The Commission has the authority to contract for "scientific and technical environmental
services," including scientific data analysis, to be used in the modeling to be conducted
by the ED. TEx. Wnren Cooe A¡w. $ 5.2291(a).
43. The ED has the authority to rely on scientific data analysis in enforcing the terms of a
permit and in presenting information about an application for a permit. Tex. WnrER
Coo¡ A¡w. $ 5.230.
44 A contesting permit holder may rely on "reasonable projections based on accepted
methods," and an applicant and the ED may do the same. 30 TAC 5 297 .19(bX2).
45 The Commission may use approximate numbers in estimating water availability in permit
application proceedings. 30 TAC $ 297.a2@),
46 For every permit, a priority date is established for the appropriation of water and fo¡ the
claimant's right to use the water. TEx. W¿.reR CoDE Am¡, $ 11.141.
11
47 The measuring date for these priority dates is the date of filing of an administratively
complete application, 30 TAC $ 297.aa@).
48 The date on which a priority date comes into being is "[w]hen the Commission issues the
permit . . . ." 30 TAC $297,a4@).
49 An applicant's right to take and use water is limited "to the extent and purposes stated in
the permit." TEX. Wnren Cooe AuN. $ 1 1.135(a).
50 A permit may include special conditions that limit the total amount of water that may be
diverted. Tex. WnrpR CoDE A¡w. $ 11.135(bX5),
51 V/ith respect to all types of permits, the Commission may include " . . . conditions and
restrictions . . . to protect the priority of senior water rights." TEx. WereR CODE A¡w, $
11.1351
52 Each term permit is subject to the unique statutory limitation making term permits
"subordinate to any senior appropriative rights." TEx. WerER CoDE S 1 1 . 13 81(d).
53 Courts generally interpret undefined terms according to their ordinary meaning. TEx.
Gov'r Cooe A¡w. $ 311.01L(a);-Geters v. Eagle Ins. Co.,834 S.V/.2d 49,50 (Tex.
reez).
54 In affirmative sentences, the ordinary meaning of "any" is "every" or "all." BnyeN A.
G¿,RNEn, GnRNBR's MooenN AveRIcRN Us¡,cp 52 (3d ed. 2009).
55. Term permits are subordinate to all senior water rights. TEx. WnrER CODE ANN
$ 11,1381(d); 30 rAC ç2e7.1e(a).
56 Mr. Ware failed to carry his burden of proving that sufficient water exists in the Brazos
River basin or that all applicable statutory and regulatory requirements have been met to
lvarrant issuing to him the proposed Water Use Permit No. 55944.
57 Pursuant to the authority of, and in accordance with, appiicable laws and regulations, the
requested Permit should not be granted.
12
()
58 Pursuant to 30 Tex. A¡vIN. CoDE A¡ltl, $$ 80.23(dX2), the Executive Director and
Office of Public Interest Counsel may not be assessed any portion of the transcript and
reporting costs.
IU. EXPLANATION OF CHANGES
1 The Commission sustained the ED's Exceptions regarding Findings of Fact Nos.24,25,
34,37,38, 39, 43, 45 and Conclusion of Law No. 40, as recommended by the ALJ in his
March 1.7,2010 reply to the parties' post-PFD submissions.
2 The Commission modified Finding of Fact No. 29 to provide consistency with the
TCEQ's water availability review, included in the record as Applicant's Exhibit No. 47,
The change was consistent with the ED's Exceptions.
NOW, THEREFORE, BE IT ORDERED BY THE TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY, IN ACCORDANCE \ryITH THESE FINDINGS OF
FACT AND CONCLUSIONS OF'LA\ry TIIAT:
The application of Bradley B. Ware to amend Water Use Permit No. 5594 is denied.
1
L. The Applicant shall pay the court reporting and transcript costs for this case.
3. The Chief Clerk of the Commission shall forward a copy of this Order to all parties, and
no amendment to Water Use Permit No, 5594 shall be issued.
4 All other motions, requests for specific Findings of Fact or Conclusions of Law, and
other requests for general and specific relief, if not expressly granted, are denied for want
of merit.
11
iJ
l*ì4 rì
,.Å
5 If any provision, sentence, clause, or phrase of this Order is for any reason held to be
invalid, the invalidity of any portion shall not affect the validity of the remaining portions
of this Order.
6 The effective date of this Order is the date the Order is final, as provided by 30 TAC
$ 80,273 and Tpx. Gov. CooE ANN. $ 2001.144.
ISSUED: APR 2 0 2A10
TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY
w w, Ph.D
14
I
q) ) APP '^tR/D3zu,lzo
Tpxns CouvussroN oN EuunoxMBNTAL Qunl,trv
STATE OF TEXAS s
COUNTY OF TRAVIS $
I, LaDonna Castañuela, Chief Clerk of the Texas Commission on Environmental Quality
(TCEQ), do hereby certiff that the attached mailing list provides the persons to whom the Order
regarding Bradley B. Ware, TCEQ Docket No. 2008-0181-WR; SOAH Docket No. XXX-XX-XXXX
was mailed on April 23,2010. The persons on the attached mailing list were all mailed by first-
class mail except TCEQ and State Office of Administrative (SOAH) staff. The order was
provided to TCEQ via electronic mail and SOAH staff via inter-agency mail. Given under my
handandthesealoftheTexasCommissiononEnvironmentalQuality,thisthe&ayof
April,2010.
Castañue Clerk
Texas Commission on Environmental Quality
SEAL
WestLaw,
V.T.C.A., Government Code $ 2001.060 Page 1
c
Effective: I See Text Amend ments I
Vernon's Texas Statutes and Codes Annotated Currentness
Government Code (Ref's & Annos)
Title 10. General Government (Refs & Annos)
Subtitle A. Administrative Procedure and Practice
\l Chapter 2001 . Administrative Procedure (Refs & Annos)
ñfd Subchapter C. Contested Cases: General Rights and Procedures
++ S 2001.060. Record
The record in a contested case includes
(1) each pleading, motion, and intermediate ruling;
(2) evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers ofproof, objections, and rulings on them;
(5) proposed findings and exceptions;
(6) each decision, opinion, or report by the officer presiding at the hearing; and
(7) all staff memoranda or data submitted to or considered by the hearing officer or members of the agency who are
involved in making the decision.
CREDTT(S)
Added by Acts 1993,73rd I-.eg,, ch. 268, $ I, eff. Sept. l, 1993
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.
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V.T,C.A., Government Code $ 2001.060 Page2
END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works
WestLaw.
V.T.C.A., Government Code $ 2001.175 Page I
c
Effective: [See Text Amendmentsl
Vernon's Texas Statutes and Codes Annotated Currentness
Government Code (Refs & Annos)
Title 10. General Government (Refis & Annos)
Subtitle A. Administrative Procedure and Practice
Ñlf,
Chaptcr 2001. Administrative Procedure (Refìs & Amros)
ñlf Subohapter G. Contested Cases: Judicial Review
++ $ 2001.175. Procedures for Review Under Substantial Evidence Rule or Undefined Scope of
Review
(a) The procedures ofthis section apply ifthe manner ofreview authorized by law for the decision in a contested case
that is the subject of complaint is other than by trial de novo.
(b) After service of the petition on a state agency and within the time permitted for hling an answer or within addi-
tional time allowed by the court, the agency shall send to the reviewing court the original or a certifìed copy of the
entire record of the proceeding under review. The record shall be filed with the clerk of the court, The record may be
shortened by stipulation of all parties to the review proceedings. The court may assess additional costs against a party
who unreasonably refuses to stipulate to limit the record, unless the party is subject to a rule adopted under Section
2001.177 requiring payment of all costs of record preparation. The court may require or permit later corrections or
additions to the record.
(c) A party may apply to the court to present additional evidence. Ifthe court is satisfied that the additional evidence is
material and that there were good reasons for the failure to present it in the proceeding before the state agency, the
court may order that the additional evidence be taken before the agency on conditions determined by the court. The
agency may change its findings and decision by reason ofthe additional evidence and shall file the additional evidence
and any changes, new findings, or decisions with the reviewing court.
(d) The party seeking judicial review shall offer, and the reviewing court shall admit, the state agency record into
evidence as an exhibit.
(e) A court shall conduct the review sitting without ajury and is confined to the agenoy record, except that the court
may receive evidence ofprocedural irregularities alleged to have occurred before the agency that are not reflected in
the record.
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V.T.C.A., Government Code $ 2001.175 Page 2
cREDTT(S)
AddedbyActs 1993,73rd l-eg., ch. 268, $ l, eff. Sept, l, 1993
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. \ùy'orks.
END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
lVestLaw
V.T.C.A., Vy'ater Code $ 11.022 Page I
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Refìs & Annos)
Title 2. Vy'ater Administration (Ref\ & Annos)
Subtitle B. Water Rights
ÑEt
Chapter 1l Water Rights (Refs & Annos)
Ñfi! Subchapter B. Rights in State Water (Refs & Annos)
++ $ 11.022. Acquisition of Right to Use State Water
The right to the use of state water may be acquired by appropriation in the marurer and for the purposes provided in this
chapter. When the right to use state water is lawfully acquired, it may be taken or diverted from its natural channel'
cREDrr(s)
Amended by Acts 1977,65thl-eg., p. 2207, ch.870, $ 1, eff. Sept. 1,1977
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works
END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Westtaw
V.T.C.A., Water Code $ 11.025 Page 1
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Refls & Annos)
Title 2. Water Administration (Retìs & Annos)
Subtitle B. rùy'ater Rights
ÑE Chapter I l. Water Rights (Refs & Annos)
ÑE Subchapter B, Rights in State V/ater (Refs & Annos)
++ $ 11.025. Scope of Appropriative Right
A right to use state water under permit or a certified fìling is limited not only to the amount specifically appropriated
a
but also to the amount which is being or can be benefìcially used for the pulposes speciflred in the appropriation, and all
water not so used is considered not appropriated.
CREDIT(S)
Amended by Acts 1977, 65thleg., p, 2207, ch. 870, $ l, eff. Sept. l, 1977
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig' US Gov. Works.
END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
weittaw
Page 1
V.T.C,A., Water Code $ 11.026
c
Effective: [See Text Amendments]
Vemon's Texas Statutes and Codes Annotated Currentness
Water Code (Ref's & Amros)
Title2.Water Administration (Re1ìs & Annos)
Subtitle B. Water Rights
ÑË Chapter 11. Water Rights (Refs & Annos)
ÑE Subchapter B' Rights in State Water (Refs & Annos)
++ $ 11.026. Perfection of an Appropriation
used for a purpose stated in the
No right to appropriate water is perfected unless the water has been beneficially
a permit issued by the commission or one of its
original declaration of intention to appropriate water or stated in
predecessors.
cREDIT(S)
Amendedby Acts 1977,65thLeg., p.2207,ch' 870, $ l, eff' Sept' 1' 1977'
Legislature
Current through the end of the 2013 Third Calted Session of the 83rd
(C) 2015 Thomson Reuters. No Claim to Orig' US Gov' Works'
END OF DOCUMENT
@ 2015 Thomson Reuters. No Claim to Orig' US Gov' Works'
We"stIaw
V.T.C.A., Water Code {ì 11.027 Page I
c
Effective: [See Text Amendmentsl
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Relb & Amos)
Title 2. Water Administration (Ret's & Annos)
Subtitle B. Water Rights
Ñlil Chapter 11. Water Rights (Refs & Annos)
ÑE Subchapter B. Rights in State Water (Refs & Annos)
++ $ lf^.027.Rights Between Appropriators
As between appropriators, the flrrst in time is the first in right.
cREDrr(s)
Added by Acts 1977 , 65th Leg., p. 2207 , ch. 870, $ I , eff. Sept. l, 1977
Current through the end of the 2013 Third Callcd Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.
Weistl.aw
Page I
V.T,C.A., Water Code |i I1.042
c
Effective: June 19' 2009
Vemon's Texas Statutes and Codes Annotated Currentness
Water Code (Ref's & Am.ros)
Tille2. Water Administration (Refìs & Amros)
Subtitle B. Vy'ater Rights
Átä
Chapter I l Vy'ater Rights (Refs & Annos)
\ti3 Subohapter B. Rights in State Vy'ater (Refs & Annos)
l+ S 11.042. Delivering Water Down Banks and
Beds
(a) Under rules prescribed by the commission, a person, association of persons, corporation, water control and im-
provement district, water improvement district, or irrigation district supplying stored or conserved water under çon-
tract as provided in this chapter may use the bank and bed of any flowing natural stream in the state to convey the
water from the place of storage to the place of use or to the diversion point of the appropriator.
(a-l) With prior authorization granted under rules prescribed by the commission, a person, association of persons,
water
corporation, water control and improvement district, water improvement district, or irrigation district supplying
imported from a source located wholly outside the boundaries of this state, except water imported from a source
located in the United Mexican States, may use the bed and banks of any flowing natural stream in the state to convey
water for use in this state. The authorization must:
(1) allow for the diversion of only the amount of water put into a watercourse or stream, less carriage losses; and
(2) include special conditions adequate to prevent a significant impact to the quality of water in this state
(b) A person who wishes to discharge and then subsequently divert and reuse the person's existing return flows derived
from privately owned groundwater must obtain prior authorization from the commission for the diversion and the
reuse of these retum flows. The authorization may allow for the diversion and reuse by the discharger of existing
return flows, less carriage losses, and shall be subject to special conditions ifnecessary to protect an existing water
provided to
right that was granted based on the use or availability of these return flows. Special conditions may also be
future
help maintain instream uses and freshwater inflows to bays and estuaries. A person wishing to divert and reuse
increases of return flows derived from privately owned groundwater must obtain authorization to reuse increases
in
return flows before the increase '
(c) Except as otherwise provided in Subsection (a) ofthis section, a person who wishes to convey and subsequently
O 2015 Thomson Reuters. No Claim to Orig' US Gov. Works.
V.T.C.A., Water Code $ I1.042 Page2
divert water in a watercourse or stream must obtain the prior approval of thç commission through a bed and banks
authorization. The authorization shall allow to be diverted only the amount of water put into a watercourse or stream,
less carriage losses and subject to any special conditions that may address the impact ofthe discharge, conveyance,
and diversion on existing permits, certified filings, or certificates of adjudication, instream uses, and freshwater in-
flows to bays and estuaries. Water discharged into a watercourse or stream under this chapter shall not cause a deg-
radation of water quality to the extent that the stream segment's classification would be lowered. Authorizations under
this section and water quality authorizations may be approved in a consolidated permit proceeding.
(d) Nothing in this section shall be construed to affect an existing project for which water rights and reuse authoriza-
tions have been granted by the commission before September 1,1997.
cREDTT(S)
Added by Acts lg77,65tltleg., p, 2207, ch.870, $ l, eff. Sept. 1,1977 . Amended by Acts 1985, 69th Leg., ch' 795, $
l.006,eff.Sept. 1,1985;Aots 199'7,7sthl-eg.,ch. 1010,ii 2.06,eff. Sept. 1,1997;Acts2009,81stLeg.,ch.1016,$2,
elï. June 19,2009.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works
END OF DOCTIMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works
WeistLaw.
V.T.C.A., Vy'ater Code $ I1.046 Page 1
c
Effective: [See Text Amendments]
Vemon's Texas Statutes and Codes Annotated Cunentness
Water Code (Refs & Atrnos)
Title 2. Water Administration (Refs & Annos)
Subtitle B. Water Rights
ÑEl
Chapter 11. Water Rights (Refs & Annos)
Ñf3
Subohapter B. Rights in State Water (Rcfs & Annos)
+ + $ 11.046. Return SurPlus Water
(a) A person who takes or diverts water from a watercourse or stream for the purposes authorized by this code shall
conduct surplus water back to the watercourse or stream from which it was taken if the water can be returned by
gravity flow and it is reasonably practicable to do so'
(b) In granting an application for a water right, the commission may include conditions in the water right providing for
the return of surplus water, in a specific amount or percentage of water diverted, and the return point on a wateraourse
or stream as necessary to protect senior downstream permits, certified filings, or certificates of adjudication or to
provide flows for instream uses or bays and estuaries.
(c) Except as specifically provided otherwise in the water right, water appropriated under a permit, certiflred fitling, or
certificate of adjudication may, prior to its release into a watercourse or stream, be beneficially used and reused by the
holder ofa permit, certified filing, or certificate ofadjudication for the purposes and locations ofuse provided in the
permit, certified filing, or certif,rcate of adjudication. Once water has been diverted under a permit, certified filing, or
certificate of adjudication and then returned to a watercourse or stream, however, it is considered surplus water and
therefore subject to reservation for instream uses or beneficial inflows or to appropriation by others unless expressly
provided otherwise in the permit, certified fìling, or certificate of adjudication.
(d) Water appropriated under a permit, certified fìling, or certificate of adjudication which is recirculated within a
reservoir for cooling purposes shall not be considered to be surplus for purposes of this chapter.
CREDTT(S)
AddedbyActs 1977,65thLeg.,p.2207,ch.870, $ l, eff. Sept. l,lgTT.AmendedbyActs 1997,75ih l-.eg., ch. 1010,
$ 2.07, eff. Scpt. 1,1997.
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.
V.T.C.A., Vy'ater Code $ 11.046 Page2
Current through the end of the 2013 Third Called Session of the 83rd Legislahrre
(C) 2015 Thomson Reuters, No Claim to Orig. US Gov. Vy'orks,
END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks
WestLaw
Page I
V.T.C.A., Water Code |i I I'l2l
P t
Effective: [See Text Amendmentsl
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Ret's & Annos)
Title 2. Water Administration (Retìs & Annos)
Subtitle B. Water Rights
ÑEl
Chaptcr 1L Water Rights (Refs & r\nnos)
1l Subchaptcr D. Permits to Use State Water (Ret's & Annos)
l+ $ ll.121. Permit Required
any state water
Except as provided in Scctions I | .142, I l.l42l , and I L 1422 of this code, no person may appropriate
or begin construction of any rvork designed for the storage, taking, or diversion of water without
first obtaining a
permit from the commission to make the appropriation,
cREDrr(s)
Lcg., ch. 544,
Added by Acrs lg7i , 65rhleg., p. 2207 , c6.870, $ l, eff. Sept. I, lg77 , Amended by Acts 1987' 70th $
l. eft'. Aug.31, 1987;Acts 1995, 71lh'Leg.,ch. 183, $ I' cft May23, 1995'
Current through the end of the 201 3 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works'
END OF DOCUMENT
( ll) l-5
-llrotnson l{cuters. Ntl L'lairlr to Orig' US (ior', Works.
WestLaw
V.T,C.A., Water Code $ I1.134 Page I
P
Effective: September l, 2007
Vernon's Texas Starutes and Codes Annotated Currentlless
Watcr Code (Retìs & Annos)
Title 2. Water Administration (lletìs & Annos)
Subtitle B. Water Rights
ÃH Chuptcr I l. Water Rights (Refìs & Annos)
Ñi¡ Subclìapter D. Pemrits to Use State Water (Ret's & z\nnos)
++ |i 11.134. Action on r\pPlication
(a) AFter the hearing, the commission shall make a written decision granting or denying the application. The appli-
cation may be granted or denied in whole or in part'
(b) The commission shall grant the application only if:
(l) the application conforms to the requirements prescribed by this chapter and is accompanied by the prescribed
fee
(2) unappropriated water is available in the source of supply;
(3) the proposed appropriation:
(A) is intended for a beneficial use;
(B) does not irnpair existing water rights or vested riparian rights;
(C) is not detrimental to the public rvelfare;
( D) considers any app licable environmental tlow standards established under Sec tion I I . I '17 I and, if applicable,
theassessmentspert'ormedunderSectiotrs lt,l-17(d)and(e)andSecrions ll.l-50, ll l51.and tl,t-52; and
(E) addresses a water supply need in a nlanner that is consistent rvith the state rvater plan and the relevant ap-
proved regional rvater plan for auy area in which the proposed appropriation is located, unless the commission
cletennines that conditions warrant rvaiver of this requirementl and
t- l0t-5'l'homson lìcutcrs. No Cl¡irn to Orig. US (ior'. Works
V.T.C.A., Water Code iì I Ll34 Page 2
(4) the applicant has provided evidence that reasonable diligence will be used to avoid waste and achieve water
conservation as defìned by Section I L002(8XB),
(c) Beginning January 5,2002, the commission may not issue a water right for municipal purposes in a region that
does not have an approved regional water plan in accordance with Sectiorr 16.053(i) unless the commission determines
that conditions warrant waiver of this requircment.
CREDTT(S)
Added by Acts 1977,65th Leg., p. 2207, ch.870, $ l, eff. Sept. l,1977 . Amended by Acts 1985, 69th Leg., ch. 133, $
1.09;Acts 1997,7sthleg.,ch. 1010,$4.0l,eff.Sept. l, 1997;Acts 1999,76thleg.,ch, 1223,i l,etïJuue 18, l9c)9;
Acts200l ,77thLeg.,ch.966,N2.08,etf.Sept, 1,2001;Acts2007,80thLeg.,ctr. 135l,Nl.l2,etï.Sept. 1,2007;Acts
2007,80th Leg., ch. 1430, N 1.12, etï. Sept. l,2007.
Current through the end of the 20 l3 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
.l'honl^son
s) l01.5 lìeutcrs. No Cllairrr to (.)rig. tJS (iov. Works.
WestLaw
V.T.C.A., Water Code $ 11.1351 Page I
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentuess
Water Code (Refs & Aturos)
Tirle2. V/ater Administration (Refìs & Annos)
Subtitle B. Water Rights
Ãff Chapter 11. Water Rights (Refs & Annos)
ÑlI Subchapter D. Permits to Use State Water (Refìs & Annos)
+.+ S 11.1351. Permit Restrictions
In granting an application, the commission may direct that stream flow restrictions and other conditions and re-
strictions be placed in the permit being issued to protect the priority of senior water rights.
cREDTT(S)
AddedbyActs 1987,70thI-,eg., ch.404,5s 1, eff. Sept. I, 1987.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
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V.T.C.A., Water Code $ I 1.138 I Page I
c
Effective: ISee Text r\mendmentsl
Vemon's Texas Statutes and Codes Annotated Curreutness
Water Code (Retìs & Aturos)
Title 2. Water Administration (Rct.s & Annos)
Subtitle B. Water Rights
Ñl;l
Clhuptcr I l. lVater Rights (Rclìs & Annos)
(t3 & Annos)
Subchapter D. Permits to Use State'ùy'ater (Rc'tìs
++ .{i 11.1381. Term Permits
(a) Until a water right is perfected to the full extent provided by Section I I .016 otthis code, the commission may issue
permits for a term of years for use of state water to which a senior water right has not been perfected.
(b) The commission shall refuse to grant an application for a permit under this section if the commission finds that
there is a substantial likelihood that the issuance of the permit will jeopardize fìnancial commitments rnade t'or water
projects that have been built or that are being built to optimally develop the water resources of the area.
(c) T[e commission shall refuse to grant an application tbr a term permit if the holder of the senior appropriative water
right can demonstrate that the issuance of the term permit would prohibit the senior appropriative water right holder
from benefìcially using the senior rights during the term of the term permit. Such demonstration will be made using
reasonable projections based on accepted methods.
(d) A permit issued under this section is subordinate to any senior appropriative water rights.
cREDIT(S)
AddedbyActs 1987,70th Lcg., ch. -105, ìi l. elt'. Sept. I, t987
Current tluough the end of the 2013 Third Catled Session oIthe 83rd Legislature
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END OF DOCUMENT
l0 l5 I honlson l{e utcls No C l¡inr to Oris. US (iov \\;orks,
V.T.C.A., Water Code |i 11.1381 Page2
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WestLaw
Page I
V.T.C.A., Water Code $ 11'146
c
Effective: September 1' 2001
Vernon's Texas Statutes and Codes Annotated Currenttress
Water Code (Ref's & Annos)
T ítle 2. Water Administration (Refìs & Arrrros)
Subtitle B. Water Rights
Ñlf,
Chapter 11. V/ater Rights (Ref's & Annos)
ñbi Subohapter D. Permits to use State Water (Refs & Annos)
+ for Inaction
+ $ ll.146. Forfeitures and cancellation of Permit
(a) a permittee fails to begin construction within the time specihed in Section
If l1'145 of this code, he forfeits all
rights to the permit, subject to notice and hearing as prescribed by this section.
to the completion of the
(b) After beginning construction if the appropriator fails to work diligently and continuously
and hearing as prescribed by this
work, the appropriation is subject to cancellation in whole or part, subject to notice
section.
this section or any
(c) If the commission believes that an appropriation or permit should be declared forfeited under
notice and provide him with an op-
other sections of this code, it should give the appropriator or permittee 30 days
portunity to be heard.
in whole or part'
(d) After the hearing, the commission by entering an order of record may cancel the appropriation
to the county
The commission shall immediately transmit a certif,red copy of the cancellation order by certified mail
the cancellation order'
clerk of the county in which the permit is recorded. The county clerk shall record
the use of water, the water is not
(e) Except as provided by Section I 1.1 381 of this code, if a permit has been issued for
or part as provided by this section'
subject to a new appropriation until the permit has been cancelled in whole
(i) Except as provided by Subchapter E of this chapter, [FNl I none of the provisions of this code may be construed as
intended to impair, cause, or authorize or may impair, cause, or authorize the
forfeiture of any rights acquired by any
begins the work and development
declaration of appropriation or by any permit if the appropriator has begun or
provided by the law under which the
contemplated by his declaration of appropriation or permit within the time
prosecuted or continues to prosecute it with
declaration of appropriation was made or the permit was granted and has
all reasonable diligence toward completion.
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V.T.C.A., Water Code $ 11.146 Page2
(g) This section does not apply to a permit for construction of a reservoir designed for the storage of more than 50,000
acre-feet of water.
CREDrr(s)
AmendedbyActs 1977,65thleg.,p.2207,ch.870, $ 1, eff. Sept. 1,1977; Acts 1987,701h1-,e9., ch.405, $ 2, eff.
Sept. 1, 1987;Acts 200l,77thleg., ch.966, $ 2.10, eff. Sept. 1,2001.
IFNl] V.T.C.A., Water Code $ I1.171 et seq.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
WestLaw
V.T.C.A., Vy'ater Code $ 11.147 Page I
c
Effective: September l, 2007
Vernon's Texas Statutes and Codes Annotated Cutrenhress
Water Code (Ref-s & Amos)
Tille 2. Water Administration (Re tìs & Anuos)
Subtitle B. Water Rights
ñ[ál
Chapter I 1. Water Rights (Refs & Annos)
Ñli Subchapter D. Permits to Use State Water (Retìs & Annos)
+ + $ ll.l47. Effects of Permit on Bays and Estuaries and Instream Uses
(a) In this section, "benefìcial inflows" means a salinity, nutrient, and sediment loading regime adequate to maintain
an ecologically sound environment in the receiving bay and estuary system that is necessary for the maintenance of
productivity of economically important and ecologically characteristic sport or commercial fish and shellfish species
and estuarine life upon which such fish and shellfish are dependent.
(b) In its consideration of an application for a permit to store, take, or divert water, the commission shall assess the
effects, if any, of the issuance of the permit on the bays and estuaries of Texas. For permits issued within an area that
is 200 river miles of the coast, to commence from the mouth of the river thence inland, the commission shall include in
the permit any conditions considered necessary to maintain beneficial inflows to any affected bay and estuary system,
to the extent practicable when considering all public interests and the studies mandated by Sectiou 16,0-58 as evaluated
under Sectiotr I l. 1491.
(c) For the purposes of making a determination under Subsection (b) of this section, the commission shall consider
among other factors:
(l) the need for periodic freshwater inflows to supply nutrients and modify salinity to preserve the sound envi-
ronment of the bay or estuary, using any available information, including studies and plans specified in Sçction
1 I . 149 I of this code and other studies considered by the commission to be reliable; together with existing circum-
stances, natural or otherwise, that might prevent the conditions imposed from producing benefits;
(2) the ecology and productivity of the affected bay and estuary system;
(3) the expected effects on the public welfare of not including in the permit some or all of the conditions considered
necessary to maintain the beneficial inflows to the affected bay or estuary system;
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V.T.C.A,, Vy'ater Code $ 11.147 Page 2
(4) the quantity of water requested and the proposed use of water by the applicant, as well as the needs of those who
would be served by the applicant;
(5) the expected effects on the public welfare of the failure to issue all or part of the permit being considered; and
(6) for purposes of this section, the declarations as to preferences for competing us€s of water as found in Sections
I1,024 and I I .033, Water Code, as well as the public policy statement in Section 1.003, Water Code.
(d) In its consideration of an application to store, take, or divert water, the commission shall include in the permit, to
the extent practicable when considering all public interests, those conditions considered by the commission necessary
to maintain existing instream uses and water quality of the stream or river to which the application applies. In de-
termining what conditions to include in the permit under this subsection, the commission shall consider among other
factors:
(l) the studies mandated by Section 16.059; and
(2) any water quality assessment performed under Section 1 I .150.
(e) The commission shall include in the permit, to the extent practicable when considering all public interests, those
conditions considered by the commission necessary to maintain fish and wildlife habitats. In determining what con-
ditions to include in the permit under this subsection, the commission shall consider any assessment performed under
Section ll.l52.
(e-l) Any permit for a new appropriation of water or an amendment to an existing water right that increases the
amount of water authorized to be stored, taken, or diverted must include a provision allowing the commission to adjust
the conditions included in the permit or amended water right to provide for protection of instream flows or freshwater
inflows. With respect to an amended water right, the provision may not allow the commission to adjust a condition of
the amendment other than a condition that applies only to the increase in the amount of water to be stored, taken, or
diverted authorized by the amendment. This subsection does not affect an appropriation of or an authorization to store,
take, or divert water under a permit or amendment to a water right issued before September 1,2007. The commission
shall adjust the conditions the commission determines, through an expedited public comment process, that such an
if
adjustment is appropriate to achieve compliance with applicable environmental flow standards adopted under Section
l l.I4l L The adjustment:
(l)in combination with any previous adjustments made under this subsection may not increase the amount of the
pass-through or release requirement for the protection of instream flows or freshwater inflows by more than 12.5
percent of the annualized total of that requirement contained in the permit as issued or of that requirement contained
in the amended water right and applicable only to the increase in the amount of water authorized to be stored, taken,
or diverted under the amended water right;
(2) must be based on appropriate consideration of the priority dates and diversion locations of any other water rights
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works
V.T.C.A., Water Code $ I1.147 Page 3
granted in the same river basin that are subject to adjustment under this subsection; and
(3) must be based on appropriate consideration ofany voluntary contributions to the Texas Vy'ater Trust, and ofany
voluntary amendments to existing water rights to change the use of a specified quantity of water to or add a use of a
specified quantity of water for instream flows dedicated to environmental needs or bay and estuary inflows as au-
lhorizedby Section 11.0237(a), that actually contribute toward meeting the applicable environmental flow stand-
ards.
(e-2) Any water right holder who makes a contribution or amends a water right as described by Subsection (e-1)(3) is
entitled to appropriate credit for the benefits of the contribution or amendment against the adjustment of the holder's
water right under Subsection (e-1).
(e-3) Notwithstanding Subsections (b)-(e), for the purpose of determining the environmental flow conditions neces-
sary to maintain freshwater inflows to an affected bay and estuary system, existing instream uses and water quality of
a stream or river, or fish and aquatic wildlife habitats, the commission shall apply any applicable environmental flow
standard, including any environmental flow set-aside, adopted under Section lll47l instead of considering the
factors specifìed by those subsections.
(Ð On receipt of an application for a permit to store, take, or divert water, the commission shall send a copy of the
permit applieation and any subsequent amendments to the Parks and V/ildlife Department. At its option, the Parks and
Wildlife Department may be a party in hearings on applications for permits to store, take, or divert water. In making a
hnal decision on any application for a permit, the commission, in addition to other information, evidence, and testi-
mony presented, shall consider all information, evidence, and testimony presented by the Parks and Wildlife De-
partment and the board.
(g) The failure of the Parks and Wildlife Department to appear as a party does not relieve the commission of the
requirements of this section.
cREDTT(S)
Amendedby Acfslg'77,65thLeg., p.2207, ch. 870, $ l, eff. Sept. l, 1977; Acts l985,69thLeg., ch. 133, |j 4.01;Acts
l987,70thLeg.,ch,4l9,$3,eft'.Sept. l,lL)87;Actsl987,70thLeg.,ch.977,$5,e11'.June19, 1987;Acts200I,17th
l,eg., ch. 966, N 2.1l, eff. Sept. 1,2001;Acts 2003,78th l-,eg., ch.1212, f) 3, eff. .Iune 20,2003; Acts 2007, tì0thl-eg.,
c,lr. 1351,$ 1.l3,cfÏ.Sept. 1,2007;Acts2007,80thLeg.,ch. 1430,$ l.l3,eff.Sept. 1,2007.
Current tkough the end of the 2013 Third Called Session of the 83rd Legislature
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WdstLaw.
Page 1
V.T.C.A., Water Code $ 1l '1471
c
Effective: September l' 2007
Vernon's Texas Statutes and Codes Annotated Curentness
Water Code (Refìs & Amros)
Tttle 2. Vy'ater Administration (Retìs & Annos)
Subtitle B. Vy'ater Rights
Ñl¡¡
Chaptcr 1 1. Water Rights (Refs & Annos)
ñlìl Subchapter D. Permits to use state water (Ret's & Arlnos)
++$ll.|4Tl.EnvironmentalFlowStandardsandSet-Asides
(a) The commission bY rule shall:
(l) adopt appropriate environmental flow standards for each river basin and bay system
in this state that are ade-
quate to support a sound ecological environment, to the maximum extent reasonable
considering other public in-
terests and other relevant factors;
(2) establish an amount of unappropriated water, if available, to be set aside to satisfy the environmental flow
needs; and
standards to the maximum extent reasonable when considering human water
permit or an amended water
(3) establish procedures for implementing an adjustment of the conditions included in a
right as provided by Seotions I 1.147(e-I) and (e-2)'
(a)(1), the commis-
(b) In adopting environmental flow standards for a river basin and bay system under Subsection
sion shall consider:
(I ) the def,rnition of the geographical extent of the
river basin and bay system adopted by the advisory group under
Scction 11.02362(a)andthedefinitionanddesignationoftheriverbasinbytheboardundersectionl6'051(c);
(e) for the adoption of environ-
(2) the schedule established by the advisory group under Section ll.02362(d) or
mental flow standards for the river basin and bay system, if applicable;
by the applicable
(3) the environmental flow analyses and the recommended environmental flow regime developed
basin and bay expert science team under Section 1 l '02362Qn);
under Section
(4) the recommendations developed by the applicable basin and bay area stakeholders committee
O 2015 Thomson Reuters. No Claim to Orig' US Gov' Works'
v.T.c.A., warer code $ 11.1471 Page 2
11.02362(o) regarding environmental flow standards and strategies to meet the flow standards;
(5) any coÍìments submitted by the advisory group to the commission under Section 1L02362(q);
(6) the specific characteristics of the river basin and bay system;
(7) economic factors;
(8) the human and other competing water needs in the river basin and bay system;
(9) al1 reasonably available scientific information, including any scientific information provided by the science
advisory committee; and
(10) any other appropriate information.
(c) Environmental flow standards adopted under Subsection (a)(l) must consist of a schedule of flow quantities,
reflecting seasonal and yearly fluctuations that may vary geographically by specific location in a river basin and bay
system.
(d) As provided by Section I 1.023, the commission may not issue a permit for a new appropriation or an amendment
to an existing water right that increases the amount of water authorized to be stored, taken, or diverted if the issuance
of the permit or amendment would impair an environmental flow set-aside established under Subsection (a)(2). A
permit for a new appropriation or an amendment to an existing water right that increases the amount of water au-
thorized to be stored, taken, or diverted that is issued after the adoption ofan applicable environmental flow set-aside
must contain appropriate conditions to ensure protection of the environmental flow set-aside.
(e) An environmental flow set-aside established under Subsection (a)(2) for a river basin and bay system other than the
middle and lower Rio Grande must be assigned a priority date corresponding to the date the commission receives
environmental flow regime recommendations from the applicable basin and bay expert science team and be included
in the appropriate water availability models in corurection with an application for a permit for a new appropriation or
for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or
diverted.
(f) An environmental flow standard or environmental flow set-aside adopted under Subsection (a) may be altered by
the commission in a rulemaking process undçrtaken in accordance with a schedule established by the commission. In
establishing a schedule, the commission shall consider the applicable work plan approved by the advisory group under
Section 11.02362(p).Thecommission'sschedulemaynotprovidefortherulemakingprooesstooccurmorefrequently
than once everyl0 years unless the work plan provides for a periodic review under Sectiott I L02362(p) to occur more
frequently than once every l0 years. In that event, the commission may provide for the rulemaking process to be
undertaken in conjunction with the periodic review if the commission determines that schedule to be appropriate. A
rulemaking process undertaken under this subsection must provide for the participation of stakeholders having in-
@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.
Page 3
V.T.C.A., Water Code $ 11.1471
process is undertaken'
terests in the particular river basin and bay system for which the
CREDIT(S)
2007, 80th Leg., ch' 1430, $ 1'14, etÏ' Sept'
Added by Acrs 2007, 80th Leg., ch. 1351, $ 1.14, eff. Sept. 1, 2007; Acts
1,2007
Current through the end of the 2013 Third Callcd Session of the 83rd Legislature
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END OF DOCUMENT
@ 2015 Thomson Reuters. No Claim to Orig. US Gov' Works'
WestLaw
Page I
V.T.C.A., Water Code $ 11.1491
c
Effective: September l, 2007
Vemon's Texas Statutes and Codes Annotated Cutretrtness
Water Code (Refb & Annos)
Title 2. Water Administration (Ref's & Amros)
Subtitle B. Water Rights
ÑÞl
Chapter 11. Water Rights (Rcfs & Annos)
\9 Subohapter D. Permits to Use State Vy'ater (Ref"s & Annos)
+ + $ ll.l49l. Evaluation of Bays and Estuaries Data
(a) The parks and Wildlife Department and the commission shall have joint responsibility to review the studies
pre-
pared under Sectign 16.058, to determine inflow conditions necessary for the bays and estuaries, and to provide in-
formation necessary for water resources management. Each agency shall designate an employee to share equally in the
oversight of the program. other responsibilities shall be divided between the Parks and Wildlife Department and the
commission to maximize present in-house capabilities of personnel and to minimize costs to the state. Each agency
shall have reasonable access to all information produced by the other agency. Publication ofreports completed under
this section shall be submitted for comment to the commission, the Parks and Wildlife Department, the advisory
group, the science advisory committee, and any applicable basin and bay area stakeholders committee and basin and
bay expert science team.
(b) Repealed by Acts 2007, 80tb l-eg., ch. l35l , $ 1.25; Acts 2007, 80th t.eg., ch. 1430, $ I '25
(c) The board may authorize the use of money from the research and planning fund established by Chapter 15 of this
code to accomplish the purposes of this section. These funds shall be used by the commission in cooperation with
the
parks and V/ildlife Department for interagency contracts with cooperating agencies and universities, and contracts
with private sector establishments, as necessary, to accomplish the purposes of this section.
CREDIT(S)
Added by Acts 1985, 69th Leg., ch. 133, $ 4,02. Renumbered from V.'f .C.4., Water Code $ I 1.149 and amended by
Acts 1987,70th Leg.. ch.4l9, g I, efT. Sept. 1, 1987. AmendedbyActs 2007,80thl-eg', ch. 1351, li$ 1.17, 1.25, eff,
Sept. 1, 2007; Acts 2007, 80th Leg., ch' 1430, S$ l.l'7,7.25, efTì Sept. 1,2007 '
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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V.T.C.A., Water Code $ I l.l49l Page 2
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END OF DOCTIMENT
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Westtaw.
V.T,C.A., Water Code {j 11.150 Page I
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Curretrhtess
Water Code (Refb & Amros)
Title2. Vy'ater Administration (Refìs & Annos)
Subtitle B. Water Rights
ñlil Chapter 11. Vy'ater Rights (Refs & Annos)
ñlil & Arrnos)
Subohapter D. Permits to Use State Vy'ater (Refìs
++ $ lf .150. Effects of Permits on Water Quatity
In consideration of an application for a permit under this subchapter, the commission shall assess the effects, if any, of
the issuance of the permit on water quality in this state.
CREDTT(S)
Added by Acts 1985, 69th Leg., ch. 795, $ 3.001, eff. Sept. l, 1985
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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WestLaw
V.T.C.A., WaterCode $ I1.151 Page I
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Refs & Amros)
Title 2. Water Administration (Ret's & Annos)
Subtitle B. Water Rights
ñ[i¡ Chapter 11. Water Rights (Refs & Annos)
ÑE Subohapter D. Permits to Use State Water (Refs & Annos)
+-f $ 11.151. Effects of Permits on Groundwater
In considering an application for a permit to store, take, or divert surface water, the commission shall consider the
effects, ifany, on groundwater or groundwater recharge,
cREDTT(S)
AddedbyActs 1997,7Stltl-eg., ch, 1010, $ 4.02,eff. Sept. 1,1997
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
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WestLaw
V.T.C.A., Water Code $ 11.152 Page I
c
Effective: September 1, 2009
Vernon's Texas Statutes and Codes Annotated Currenhress
Water Code (Refìs & Annos)
Title 2. Vy'ater Administration (Refìs & Annos)
Subtitle B. Water Rights
ÑE
Chapter 1 1. Vy'ater Rights (Refls & Annos)
$ù Subchapter D. Permits to Use State V/ater (Relìs & Annos)
+ + $ ll.l52, Assessment of Effects of Permits on Fish and \ilildlife Habitats
In its consideration of an application for permit to store, take, or divert water in excess of 5,000 acre feet per year, the
a
commission shall assess the effects, if any, on the issuance of the permit on fish and wildlife habitats and may require
the applicant to take reasonable actions to mitigate adverse impacts on such habitat. In determining whether to require
an applicant to mitigate adverse impacts on a habitat, the commission may consider any net benefit to the habitat
produced by the project. The commission shall offset against any mitigation required by the U.S. Fish and V/ildlife
Service pursuant to 33 C.F.R. Parts 320-330 any mitigation authorized by this section.
CREDTT(S)
Added by Acts 1985, 69th Leg., ch.795, $ 3.001, eff. Sept. I, 1985. Renumbered from V,T.C.A., Water Code $ l1 '149
by Acts 1987, 70th [.eg., ch. I 67, $ 5.01 (a)(56), efT. Sept. l, 1987. Amended by Acts 2009, 81st l-eg., oh. 87, !i 24.002,
e tï-. Sept. 1, 2009.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCLIMENT
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WestLaw
V.T.C.A., Vy'ater Code $ I1.171 Page 1
c
Effec tive: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Curretrtness
rffater Code (Ref's & Anrros)
Title 2. Water Administration (Refìs & Annos)
Subtitle B. Vy'ater Rights
Ñtå
Chapter 11. Vy'ater Rights (Refìs & Annos)
\¡ Subohapter E. Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse
(Retìs & z\nnos)
++ $ ll.l7l. Definitions
As used in this subchapter:
(l) "Other interested person" means any person other than a record holder who is interested in the permit or certified
filing or any person whose direct interest would be served by the cancellation of the permit or certified fìling in
whole or part.
(2) "Certified filing" means a declaration of appropriation or affidavit that was filed with the State Board of Vy'ater
Engineers under the provisions of Section 14, Chapter 171, General Laws, Acts of the 33rd Legislature, 1913, as
amended.
(3) "Certificate of adjudication" means a certificate issued by the commission under Section I I .323 of this code.
(4) "Permit" means an authorization by the commission granting a person the right to use water
CREDTT(S)
Added by Acts lg77 , 65thl,eg., p. 2207 , ch.870, $ I, eff. Sept. l, 1977 . Amended by Acts l99l,72ttd l,eg., ch. 309,
$ l, eff. Sept. 1, 1991.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
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WestLaw
Page 1
V.T.C,A., Water Code $ 11.172
c
Effective: [See Text Arnendments]
Vernon's Texas Statutcs and Codes Annotated Currentness
Water Code (Refb & Annos)
Title2. Water Administration (Refs & Annos)
Subtitle B. Vy'ater Rights
ÑE Chapter 11. Water Rights (Refs & Annos)
ñË Subohapter E. Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse
(Refs & Annos)
++ $ ll.l72. General PrinciPle
A permit, certified filing, or certificate ofadjudication is subject to cancellation in whole or part for 10 years nonuse as
provided by this subchapter.
cREDIT(S)
AddedbyActs 1977,65¡}-Leg.,p.2207,ch' 870, $ 1, eff. Sept. 1,197'l'
Current through the end of the 20 13 Third Called Session of the 83rd Legislature
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WeitLaw
V.T,C.A., Water Code $ 11.173 Page I
c
Effective: September l, 2013
Vernon's Texas Statutes and Codes Arurotated Currenttress
Water Code (Ref's & Annos)
Title 2. Water Administration (Refìs & Annos)
Subtitle B. Vy'ater Rights
\ld Chapter 1l Vy'ater Rights (Ref's & Annos)
ñ13
SubohLrpter E. Cancellation of Permits, Certihed Filings, and Certificates of Adjudication for Nonuse
(Refìs & Anlos)
+.+ $ ll.l73, Cancellation in Whole or in Part
(a) Except as provided by Subsection (b) ofthis section, ifall or part ofthe water authorized to be appropriated under
a permit, certified filing, or certificate of adjudication has not been put to beneficial use at any time during the lO-year
period immediately preceding the cancellation proceedings authorized by this subchapter, then the permit, certified
filing, or certificate of adjudication is subject to cancellation in whole or in paf, as provided by this subchapter, to the
extent ofthe 10 years nonuse.
(b) A permit, certified filing, or certificate of adjudication or a portion of a permit, certif,red filing, or certificate of
adjudication is exempt from cancellation under Subsection (a):
(1) to the extent of the owner's participation in the Conservation Reserve Program authorized by the Food Security
Act, Pub.L. No. 99-198, Secs. 1231-1236,99 Stat. 1354, 1509-1514 (1985) IFNl] or a similar govemmental pro-
gram;
(2) if a significant portion of the water authorized to be used pursuant to a permit, certified filing, or certificate of
adjudication has been used in acçordance with a specific recommendation for meeting a water need included in the
regional water plan approved pursuant to Section 1 6.053;
(3) if the permit, certif,red filing, or certificate of adjudication:
(A) was obtained to meet demonstrated long-term public water supply or electric generation needs as evidenced
by a water management plan developed by the holder; and
(B) is consistent with projections of future water needs contained in the state water plan;
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
V,T.C.A., Water Code $ 11.173 Page2
(4) if the permit, certified hling, or certificate of adjudication was obtained as the result of the construction of a
reservoir funded, in whole or in part, by the holder of the permit, certified filing, or certificate of adjudication as part
of the holder's long-term water planning; or
(5) to the extent the nonuse resulted from:
(A) the implementation of water conservation measurçs under a water conseryation plan submitted by the holder
of the permit, certified filing, or ccrtificate of adjudication as evidenced by implementation reports submitted by
the holder;
(B) a suspension, adjustment, or other restriction on the use of the water authorized to be appropriated under the
permit, certified filing, or certificate of adjudication imposed under an order issued by the executive director; or
(C) an inability to appropriate the water authorized to be appropriated under the permit, certified filing, or cer-
tificate ofadjudication due to drought conditions.
CREDIT(S)
Added by Acts 1977 ,65thl-eg., p. 2207 , ch.870, $ I, eff. Sept. l, 1977 . Amended by Acts 1986, 69th Leg', 3rd C.S.,
ch.33, g l, eff. Oct. 15, 1986;Acts 1991,72:ndl-eg., ch.309, N 2, ell'. Sept. l,l99l; Acts 1997,75thLeg., ch. 1010, $
4.06, eff. Sept. 1, 1997; Acts 200l,77Ihleg., ch. 966, þ 2.12, eff. Sept. l, 2001; Acts 2005, 79lhLeg., ch. 1044, $ 1,
eff. June 18, 2005; Acts 2013, 83rd t.eg., ch. 1020 (H.8.2615), $ 2, eff' Sept. 1, 2013'
IFNl] 16 U.S.C.A. $$ 3831 to 3836.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCLIMENT
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WeistIaw
Page 1
V.T.C.A., Water Code $ I1.174
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Ref's & Amos)
Title 2. Vy'ater Administration (Refìs & Annos)
Subtitle B. Water Rights
ÑE Chapter 11. Vy'ater Rights (Refs & Annos)
ñll Subchapter E. Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse
(Retìs & Annos)
++ $ ll.l74. Commission May Initiate Proceedings
the past
When the commission finds that its records do not show that some portion of the water has been used during
l0 years, the executive director may initiate proceedings, terminated by public hearing, to cancel the permit, certified
filing, or certificate of adjudication in whole or in part.
CREDIT(S)
ch' 795,
Added by Acts 1977,65thLeg.,p.2207,ch. 870, $ l, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg', $
1.016, eff. Sept. 1, 1985;Acts l99l,72ndleg., ch' 309, 5s 3' etT' Sept' I,l99l'
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
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WestLaw
V.T.C.A., Vy'ater Code 6 I1.175 Page 1
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Arurotated Currentness
Water Code (Ref's & Annos)
Title 2. Vy'ater Administration (Ref-s & Annos)
Subtitle B. Water Rights
ñ[3 Chapter 11. Water Rights (Ref's & Annos)
ñlå Subohapter E. Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse
(Retì & Arnos)
++ $ 11.175. Notice
(a) At least 45 days before the date of the hearing, the commission shall send notice of the hearing to the holder of the
permit, certified filing, or certificate of adjudication being considered for cancellation in whole or in part. Notice shall
be sent by certified mail, retum receipt requested, to the last address shown by the records of the commission, The
commission shall also send notice by regular mail to all other holders of permits, certified filings, certificates of ad-
judication, and claims of unadjudicated water rights filed pursuant to Section 1 1.303 of this code in the same water-
shed.
(b) The commission shall also have the notice of the hearing published once a week for two consecutive weeks, at least
30 days before the date of the hearing, in a newspaper published in each county in which diversion of water from the
source of supply was authorized or proposed to be made and in each county in which the water was authorized or
proposed to be used, as shown by the records of the commission. If in any such county no nowspaper is published, then
the notice may be published in a newspaper having general circulation in the county.
CREDTT(S)
AddedbyActs 1977,65rhl,eg., p. 2207,ch.870, $ 1, eff. Sept. 1,1977. Amendedby Acts l99l,72ttd Leg., ch.309,
g 4, eff, Sept. l, 1991.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
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WestIaw
V.T.C.A., Water Code $ 11.176 Page I
c
Effective : [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Curentness
Vy'ater Codc (Refìs & Annos)
Title 2. Water Administration (Refìs & Amros)
Subtitle B. Water Rights
ñE Chapter 11. Water Rights (Refs & Annos)
\ttå Subchapter E. Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse
(Refi & Anlos)
+-) $ ll.176. Hearing
(a) Except as provided by Subsection (b) of this section, the commission shall hold a hearing and shall give the holder
of the permit, certified filing, or certificate of adjudication and other interested persons an opportunity to be heard and
to present evidence on any matter pertinent to the questions at issue.
(b) A hearing on the cancellation ofa permit, certified filing, or certificate of adjudication as provided by this chapter
is unnecessary if the right to such hearing is expressly waived by the affected holder of a permit, certihed filing, or
certific ate of adj udication.
(c) A permit, certified filing, or certificate of adjudication for a term does not vest in the holder of a permit, certified
filing, or certiflrcate of adjudication any right to the diversion, impoundment, or use of water for longer than the term of
the permit, certified f,rling, or certificate of adjudication and shall expire and be cancelled in accordance with its terms
without further need for notice or hearing.
CREDTT(S)
AddedbyActs 1977,65thLeg.,p.2207,ch.870, {) l, eff. Sept. 1,1977. AmendedbyActs 1991,72nd Leg., ch.309,
S 5, elÏ. Sept. l, 1991;Acts 1997,7sthl-eg., ch. 1010, {i 2.l2,etf. Sept. l, 1997.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.
WestLaw.
V.T.C.A., Water Code $ 11.177 Page I
c
Effective: September 1, 2001
Vernon's Texas Statutes and Codes Annotated Curentness
Water Code (Refis & Amos)
Title 2. Water Administration (Refìs & Annos)
Subtitle B, Vy'ater Rights
ñlfl Chapter 11. Water Rights (Refs & Annos)
\il Subohapter E, Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse
(Refìs & Annos)
++ $ ll.l77. Commission Finding; Action
(a) At the conclusion of the hearing, the commission shall cancel the permit, certified filing, or certificate of adjudi-
cation in whole or in part to the extent that it finds that:
(l) the water or any portion of the water appropriated under the permit, certiflred fìling, or certificate of adjudication
has not been put to an authorized beneficial use during the 1O-year period; and
(2) the holder has not used reasonable diligence in applying the water or the unused portion of the water to an au-
thorized beneficial use or is otherwise unjustified in the nonuse.
(b) In determining what constitutes reasonable diligence or a justified nonuse as used in Subsection (a)(2), the com-
mission shall give consideration to:
(l)whether sufhcient water is available in the source of supply to meet all or part of the appropriation during the
lO-year period of nonuse;
(2) whether the nonuse is justif,red by the holder's participation in the federal Conservation Reserve Program or a
similar governmental program as provided by Section 11.173(bXl);
(3) whether the existing or proposed authorized purpose and place ofusç are consistent with an approved regional
water plan as provided by Section 16.053;
(4) whether the permit, certified filing, or certificate of adjudication has been deposited into the Texas Water Bank
as provided by Sections 15.703 1 and 15.704 or whether it can be shown that the water right or water available under
the right is currently being made available for purchase through private marketing efforts; or
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.
V.T,C,A,, Water Code {) I1.177 Page2
(5) whether the permit, certified filing, or certificate of adjudication has been reserved to provide for instream flows
or bay and estuary inflows.
cREDTT(S)
AddedbyActs 1977,65thl.eg., p. 2207,ch.870, $ l, eff. Sept. 1,1977. AmendedbyActs 1991,'72nd Leg,, ch. 309,
g 6, eIL Sept. l, 1991; Acts 1997,7sthl-eg., ch. 1010, $ 2.l2,eff. Sept. 1, 1997;Acts 200l,77thleg., ch.966, $ 2.13,
eff. Sept. 1,2001.
Current through the end of the 20 13 Third Called Session of the 83rd Legislature
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END OFDOCUMENT
O 2015 Thomson Reuters, No Claim to Orig. US Gov. Works.
WestLaw
V.T.C.A., Vy'ater Code S I1.183 Page I
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Vy'ater Code (Refb & Aruros)
TiIle 2. Water Administration (Refìs & Annos)
Subtitle B, Water Rights
ÑEl
Chapter 1 1. Water Rights (Reß & Annos)
Ñtå
Subohapter E. Cancellation of Permits, Certified Filings, and Certihcates of Adjudication for Nonuse
(Relì & Aluros)
.++ $ 11.183. Reservoir
If the holder of a permit, certif,red filing, or certificate of adjudication
has facilities for the storage of water in a res-
ervoir, the commission may allow him to retain the impoundment to the extent of the conservation storage capacity of
the reservoir for domestic, livestock, or recreation pulposes.
cREDTT(S)
Added by Acts 1977 , 65th Leg., p. 2207 , ch.870, g 1, eff. Sept. l, 1977
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
We\tLaw.
V.T.C.A., Vy'ater Code $ 11.184 Page I
c
Effective: [See Text Amendments]
Vemon's Texas Statutes and Codes Amotated Currentness
Water Code (Refìs & Annos)
Title 2. Vy'ater Administration (Refs & Annos)
Subtitle B. Water Rights
Ñlf,
Chapter 1l Water Rights (Refs & Annos)
Ñli Subchapter E. Cancellation of Permits, Certified Filings,
and Certificates of Adjudication for Nonuse
(Reti & Amos)
++ $ 11.184. Municipal Certifïed Filing
Regardless of other provisions of this subchapter, no portion of a certified frling held by a city, town, village, or mu-
nicipal water district, authorizing the use of water for municipal purposes, shall be cancelled if water has been put to
use under the certified filing for municipal purposes at any time during the lO-year period immediately preceding the
institution of cancellation proceedings.
CREDTT(S)
Added by Acts 1977, 65thl,eg., p. 2207, ch. 870, $ 1, eff. Sept. l, 1977
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.
wctäw
V.T.C.A., Water Code $ 11.185 Page 1
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Refs & Annos)
Title 2. Water Administration (Ref's & Amos)
Subtitle B. Water Rights
ñfl Chapter 11. Water Rights (Refs & Annos)
\lSubchapter E. Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse
(Reti & Arnos)
++ S 11.185. Effect of Inaction
Failure to initiate cancellation proceedings under this subchapter does not validate or improve the status of any permit,
certified fìling, or certificate of adjudication in whole or in part.
cREDTT(S)
Added by Acts 1977 , 65thLeg., p. 2207 , ch. 870, $ l, eff. Sept. l, 1977
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
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WestLaw
V.T.C.A., Water Code $ 11.186 Page I
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Ref's & Anuos)
Title2. Water Administration (Ref's & Annos)
Subtitle B. Water Rights
ÑE
Chapter 11. Water Rights (Refs & Annos)
Ñ[å
Subchapter E. Cancellation of Permits, Certihed Filings, and Certificates of Adjudication for Nonuse
(Rel's & Annos)
+.+ $ 11.186. Subsequent Proceedings on Same Water Right
Once cancellation proceedings have been initiated against a particular permit, certified filing, or certificate of adju-
dication and a hearing has been held, further cancellation proceedings shall not be initiated against the same permit,
certified filing, or certificate of adjudication within the five-year period immediately following the date of the hearing.
cREDrr(s)
Added by Acts 1977,65th Leg., p. 2207, ch.870, $ l, eff. Sept. l,1977
Current through thc end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works
WestLaw
V.T.C.A., Water Code $ 16.012 Page 1
Þ
Effective: June 20, 2003
Vernon's Texas Statutes and Codes Annotated Currentness
Water Code (Ref's & Aturos)
Title 2. Water Administration (Refìs & Annos)
Subtitle C. Water Development
ñ{il Chaptcr 16. Provisions Generally Applicable to Vy'ater Development (Relìs & Annos)
ÑlÉ
Subol'rapter B. Duties of the Executive Administrator
++ $ 16.012. Studies, Investigations, Surveys
(a) The executive administrator shall make studies, investigations, and surveys of the occulrence, quantity, quality,
and availability of the surface water and groundwater of this state and shall, in cooperation with other entities of the
state, guide the development of a statewide water resource data collection and dissemination network. For these
purposes the executive administrator shall collect, receive, analyze, process, and facilitate access to basic data and
summary information concerning water resources of the state and provide guidance regarding data formats and de-
scriptions required to access and understand Texas water resource data'
(b) The executive administrator shall:
(l) determine suitable locations for future water facilities, including reservoir sites;
(2) determine suitable, cost-effective water supply alternatives on a regional basis, including voluntary means of
encouraging aggressive water conservation;
(3) locate land best suited for irrigation;
(4) make estimates of the cost of proposed irrigation works and the improvement of reservoir sites;
(5) examine and survey reservoir sites;
(6) monitor the effects of fresh water inflows upon the bays and estuaries of Texas;
(7) monitor instream flows;
(8) lead a statewide effort, in coordination with federal, state, and local governments, institutions of higher educa-
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Water Code $ 16.012 Page 2
tion, and other interested parties, to develop a network for collecting and disseminating water resource-related in-
formation that is sufficient to support assessment of ambient water conditions statewide;
(9) make recommendations for optimizing the efficiency and effectiveness of water resource data collection and
dissemination as necessary to ensure that basic water resource data are maintained and available for Texas; and
(10) make basic data and summary information developed under this subsection accessible to state agencies and
other interested persons.
(c) In performing the duties required under Subdivisions (1), (4), (5), (6), and (7) of Subsection (b), the executive
administrator shall consider advice from the Parks and Wildlife Department. In addition, the Department of Agri-
culture may provide advice to the executive administrator, where appropriate, regarding any of the duties to be per-
formed under Subsection (b).
(d) All entities of the state, including institutions of higher education, that collect or use water data or information shall
cooperate with the board in the development of a coordinated, efficient, and effective statewide water resource data
collection and dissemination network.
(e) The executive administrator shall keep fulI and proper records of his work, observations, data, and calculations, all
of which are the property of the state.
(f¡ In performing his duties under this section, the executive administrator shall assist the commission in carrying out
the purposes and policies stated in Section 12'014 of this code.
(g) No later than December 31, lggg, the commission shall obtain or develop an updated water availability model for
six river basins as determined by the commission. The commission shall obtain or develop an updated water availa-
bility model for all remaining river basins no later than December 3 1, 200 1 .
(h) Not later than December 3l,20}3,the commission shall obtain or develop an updated water supply model for the
Rio Grande. Recognizing that the Rio Grande is an international river touching on th¡ee states of the United States and
five states of the United Mexican States and draining an area larger than the State of Texas, the model shall encompass
to the extent practicable the signifìcant water demands within the watershed of the river as well as the unique geology
and hydrology of the region. The commission may collect data from all jurisdictions that allocate the waters of the
river, including jurisdictions outside this state.
(i) Within 90 days of completing a water availability model for a river basin, the commission shall provide to all
holders of existing permits, certified filings, and certificates of adjudication in that river basin the projected amount of
water that would be available during a drought of record'
provide to each
O 'Within 90 days of completin g a water availability model for a river basin, the commission shall
regional water planning group created under Section 16.053 of this code in that river basin the projected amount of
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.
V.T.C,A., Water Code {i 16.012 Page 3
water that would be available if cancellation procedures vr'ere instigated under the provisions of Subchapter E, Chapter
I1 [FNl], of this code,
(k) Within 90 days of complèting a water availability model for a river basin, the commission, in coordination with the
Parks and V/ildlife Department and with input from the Department of Agriculture, where appropriate, shall determine
the potential impact of reusing municipal and industrial effluent on existing water rights, instream uses, and freshwater
inflows to bays and estuaries. Within 30 days of making this determination, the commission shall provide the pro-
jections to the board and each regional water planning group created under Section l6,053 ofthis code in that river
basin.
(1) The executive administrator shall obtain or develop groundwater availability models for major and minor aquifers
in coordination with groundwater conservation districts and regional water planning groups created under Section
16.053 that overlie the aquifers. Modeling of major aquifers shall be completed not later than October 1,2004. On
completing a groundwater availability model for an aquifer, the executive administrator shall provide the model to
each groundwater aonseryation district and each regional water planning group created under Section 16.053 over-
lying that aquifer.
(m) The executive administrator may conduct surveys of entities using groundwater and surface water for municipal,
industrial, power generation, or mining purposes at intervals determined appropriate by the executive administrator to
gather data to be used for long-term water supply planning. Recipients of the survey shall complete and return the
survey to the executive administrator. A person who fails to timely complete and return the survey is not eligible for
funding from the board for board programs and is ineligible to obtain permits, permit amendments, or permit renewals
from the commission under Chapter I l. A person who fails to complete and return the survey commits an offense that
is punishable as a Class C misdemeanor. This subsection does not apply to survey information regarding windmills
used for domestic and livestock use.
(n) Information collected through field investigations on a landowner's property by the executive administrator after
September l, 2003, solely for use in the development of groundwater availability models under Subsection (l) of this
section that reveals site-specific information about such landowner is not subject to Chapter 552, Government Code,
and may not be disclosed to any person outside the board if the landowner on whose land the information is collected
has requested in writing that such information be deemed confidential. If a landowner requests that his or her infor-
mation not be disclosed, the executive administrator may release information regarding groundwater information only
if the information is summarized in a manner that prevents the identification of an individual or specific parcel of land
and the landowner. This subsection does not apply to a parcel of land that is publicly owned.
cREDTT(S)
AddedbyActs 1977,65thl-eg., p. 2207,ch.870, $ eff. Sept. 1,1977. AmendedbyActs l985,69thLeg., ch.795, g
1,
1.045, eff. Sept. l, 1985;Acts 1997,751h [-eg., ch. 1010, $ 7.01, eff. Sept. l, 1997; Acts 1999,76th.Leg., ch.456, ss 3,
cfÌ'. June 18,1999; Acts l999,76thLeg., ch, 518, $ I, efÏ Junc 18, 1999;Acts 1999,76thLeg.,ch.979, $ 3, el1. June
Itì, 1999;Acts l999,76thLeg.,ch.1222, $ l, eff. June 18. 1999;Acts 200l,77thleg., ch.966, $ 2.15, elï. Sept. l,
2001; Acts 2003,78th l.eg., ch. 1057, $|i 3,4. efT. Jru:e 20. 2003.
O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Water Code $ 16.012 Page 4
[FNl] V.T,C.A., Water Code $ 11.171 et seq
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCI-IMENT
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E
oENER'[fr rrÀws' zll
N,dVISION OT' IBTìIGANTON TJ¡'WS.
E. B. No, 23?.1 Crurtrmn 88.
Bø ôt amctø(I, h1¡ the Lcgìslotuta of the State of fenøs'
zLZ GENERÄIJ LAWS.
appropriotion
-
of ìveter for irrigotlon.
Sno. S. A¡ bctrveen opproprintorr, tbo flrst in time Ís ths flrst in
right.
Sno. 6. For tho Dur?oÊe of this Aot, au app
son, association of persous, corporation or irr
ha¡ herotofore mnde bencfla.ial uno of ony rvator,
rvator engincerr,
S¡o. ?, NcithOr tho foregoiug Section nor ûny other provinion
of thia Àct ¡lrall l¡c conntrnecl 'n.s intcndcd to impnir or to work or
authorizc the folfeitr¡re of, or shnll impair or worlt or nuthorize the
forfcitur
rleolnrati
hns bcgu
cìcelnnuti
nnclcr rv
.' GENERAIJ ITAWS. 218
Section 33 of this Act.
Sno. 8. Tho St¿te sholl be ancl js lrcrcby divicleil into thres
2L4 OENERÄIJ L¡ÀWS.
mê¡¡ta, upon the preeentotion of solory vouohers, approvcil by the
board.
' Sno. 12. îhs membsrs appointetl shall meet ut.{uetin and o}gsnize
end elect one of their number ehairman of saitl board. Ä majority
of iaicl boartl shall conetitute o (ttorum to trmsact businoss. Soi,l
ing orpenses rvhile trovcling on the businegs of tha l¡oarcl' upoû on
ttemized stotemcnt, swom to by the party who incurt'etl tho expente
GENERAÍT liÄws' 216
othor sourco of woter aupply; the position ancl area of oll lakee'
ro¡ewoirs or basins jntontlcil to be used or creatod, ond the water
216 GENDRAIJ IJAW$.
GENDRÀIr IJÀWS. 217
locatc¡i, Iu addition to ¡uch publicatioq, o copy of sueh notics shall
bo transmittect by the sccrotary of ths board, by regieterctl mril arl'
GDNEB.AI¡ IJ.AWS. 219
r that PurPoso
o none of the
ancl thcroupon
Sueh permìt,
be constmctive
Suo. 34. *\ny pc cotporotion, tvotor
improvamcnt oi irri oflcer, employe or
reprcscntativo of nn ons, corporation or
irrigntion dietrict,'w or npproprïato any
rntion, irrigation distriot, ot tho agcnt, ofllcer, employcs or reftrcscntn-
tivas of &ny person, aesoci¡tion of pcrsons, corporotion or irrigation
district.
Snc. 35. In uldition to tho puniehment prescribccl in tho last pre'
ceding section, ûny personr nnsocintion of pcrsons, corporotion, wotor
improvemcnt or irrigntion tlistrict, or any agent, officer, cmployo or
represontofive of any such þersons, arsociotion of persons, corpollt'
220 GENERAIT L'ÄWS.
lows as tho information and expcrionee of ihe board may suggcst'
Tho lroard shnll lreep in its oflco-full ond Froper rccords of ite rvork,
obeervntions onil erlculations, ull of which shalt bo the propcrty
of tho Stato.
Seo. 38. It shnll l¡o tho duty of ths tluty
of water, a¡rd to tlctcrmino tho þrop
-tho or irriga-
tion and othcr lnrvful uses in statc in
orclcr to sccuro the highest beneflcial upo of ruch rvoter, pueh rvollr
to be flrgt conductctl iñ thoso sections lvhere in the jtrdgmcnü of the
oppcal,
-
S¡o. 40. The þoard mny atlopt' promulgoto antl cnforte sttch rules,
rogulations and i¡rotles of-procôttuie ar it moy dcem propor for the
GENERA! IJAWS. Z'Lt
-un¿or
rlischargo of ihe tluties incumbont upon. it the provisions of
this Act.
Suo. 41. The boaril rhall charge antl eollect, for ths beneflt of the
State, the following fcee:
Foi flting eoch ãnd ovory application for ony prrrpoBe' a fce of
sovon an¿l ono-half ilollnr¡, rntl in otltlition thereto:
flvo ucrc.feet,
For ffling crch applicrtion eontomplating anil proposing the tohing
or division of rvrtcr for the plrrposo of ilrigntion, ten ccnts for enoh
and cvery ncro tl.
For flling ea g nnd contcmplnting the uss of
rvotcl for Lhc hydrnulic potvcr, a fcd of two
cents for cnch cubia foot of n'otot' per sceontl
it is proposed to use.
For ffling eueh application contcmplating nnd proposing the tnkirrg'
clivcraion, or r¡se of flowing rvntcr for any
irrigotion of land, or the developmcnt of
boforo providod, flvo cents for cnch ncre'
ünnl¡m.
ntttlition¡I fees on n
of wnter for trvo oÉ
d sholl be aumnlativti,
quontity propoaecl for'
each sopnreto use.
For the fiìing of each, nnd cvary exhibit, mop, nffidovit, or othar
pnper outhorizccl to bc filail in the officc of tÏe boartl of n'otsr cu-
gincora, o flling fco of trventy-flvo cents'
fior rcco¡ding cnch ond ovory popor outhorizcd or required to be
recordecl in tho reeords of the offico of thc boautl, a, feo of ono dollar,
and in adclition thercto, o fce of flftecn ecnts per folio of ous hundrcd
words, in oxcesg of trvo hundretl. !
For making antl cortifying cach and every eopy of an i¡rstrument
ot pnper ¡uthorizecl to bo cortiflecl undcr ths ¡oal of tlte l¡onrtl a
fee of one dollot', and in ¡ildition thcreto, a feo of flfteen contr per
folio of one hundrod rvordr, inelucling tho ccrtiflcote.
!'or making and ccrtifying copios of any mop ot blue print there.
of, o foe of one dollar; and in oildition theroto a fee of seventy fl_ve
conts for crch hour or fraction thercof necessqrily employetl by the
clraughtsmuD in making such copy.
ZZZ OENEßAIJ IJÀWS.
GENEHA.IJ ÚÀWS. '¿28
22L GDNERAIJ L¡AWS.
the ea,me, such'user ahall puy for tho rus thereof suah chcrgo or
rentol ae the boartl ehall flntl to bs iuet oucl renBonoblo, and subjeet
to revision by tho court, as horein provitlod for. other watcr rotcs and
charges.
Sno. 60, For the pulpose of conveying antl dolivoriug storm, flood
ugo or tlivort eume,
GDNDR.A¡ IrÄWS. 226
in thc county jnil for any pariotl of time not to oxceccl onc yenr' or
lõ-lnrl.
226 GENER¿\L¡ I:ÀWS.
hblct au
to præluclo r -or
oorporo'
con
tion orviing or tlto som.o to
u¡f person-having tho la$'s of
thi¡ Stato.
Sno. 68. Tho permane¡rt rv¡ter right sholl bo 0n cns-cment to tho
land sntl puss rviih thc titlc thercto; tho orvner thoroof shnll bc on'
titled to dho n¡u of tho wotor tpon lhe tormr proviclcd ilr hig or
land.
cler -eã. in rvriting.
clecisiou
---inõ.
¡\ppenl frim sush.clccision of tho boortl-m-ay be tokcu
rvithi¡r tho tim-o'nnd in ths ¡nnnncr tts horoin providetl for othor op'
GENEnÂIJ L¡ÀWS. 229 '
,'
2gO GENEBAL I:À.WS.
GENDRÀIJ IJA14IS. 201
county jtil, fol sny torm not excceding rix months, nntl coch doy tha_t
euch iutling or diversio¡r chnll aontinuo ¡hnll con¡titute o aopnroto of.
fouso.
Seo. 83. Whenovor trny Dppropriu,tor of rvotor from sny Btrenm
or othcl sonlco of rvntcr sripply loc¡rtcd in wholo or in pnrt within thh¡
Borrd of 'Wttcr Engineers
o eertificil rccortl of such appro¡rriation, ar
roquircd by Chnptcr 1?1 of thc Acts of tho rcgulor ¡e¡sion of thL'
Thirty.thircl Lcgisloturo, ancl slì¡ll huvc madc use of the lvateu, under
tho tòrnrs of suoh filing or pcrmit for tr pcriod of threo yearr oftct'
this .¿\ct nliall tnko cffcct,'ho shall ba decmctl to hove aoquircd o titlc
to such tpproprintiotr by limitotion, ns ngainst any nntl nll other claim-
¡nts of rvatcr from the same Btrcam, or other rourco of rvoter supply,
'nnd as ngninst nny'and oll riprriun owncrs r¡pon raitl ¡trctm or othor
sor¡rco of rvatcr rupply.
Seo. 84. Unlcss the pcrson, n¡¡oeintion of porsons, corpor&tion,
rvntor irnprovcmcnt or irrigation clistrict oivning or conholling any
ditch, cnnol, roscrvoir, tlom or lako, rhall l2e ç a sophisticated
holder of large water rigþts can rely on the Executive Director, should not all smaller water right
holders and even water users be able to rely on us as trustee to ensu¡e that the water supply they
depend upon remains reliably available? Further,-many who might be affected could choose not
to particiiate in a hearing beðause of the
"xpent".3o
There are myriad r€asons other affected parties might fail to or choose not to protest a
water rights applicatior¡ but the state cânnot fail to or choose not to ensure the integrity of the
management system ensuring the reliabilify and sustainability of oru surface water supply. A
vigorous defense of the state's system of surface water ma¡agement is not oniy within the
bounds of the Executive Director's proper role, it is a duty of monumental importance that as
evidenced by this proceeding, the Executive Director takes very seriously.
V. Conclusion
The Commission has never issued a permit for an appropriation of water to Applicant.
Applicant has no claím to use water pr:rsuant to an appropriative right. The priority date
assigned to Permit 5594 is void upon the expiration of the tenn, and has no effect in regard to
Applicant's request for a permit for a new, pernanent appropriation of water. Using the correct
priority date, the Executive Director has found that no water, whether for use as a new
appropriation of water or for tsrm use of previously-appropriated water, is available for diversion
at Applicant's díversion point. Even more, the Applicant failed to produce any evidence or
analysis of evidence proving water availability for his request. Consequently, the Executive
Director respectfully requests that the Honorable Administrative Law Judge recommend denial
of Application 55944.
28
As Applicant states in his Closing Argumen! "The legal principles of Vy'estern water law...support the concepts
of government oversight of water resources, deemed essential to promoting the beneficial use of available water in
accordance v/ith the public welfare." Applicant's Closing Argumeng 4.
2eApplicant'sExhibit 43,BrazosRiverAuthority'sWithdrawalofP¡otestandParlyStahs,January9,2009,at2.
For example, in its withdrawal, BRA cited a "disproportionate commitrnent of resoruces that is being required" of
30
it cliscontinuing its participation ia this proceediag. Applicant's Exhibit 43, at2.
in
I
) 3
Respectfully submitted, ,
Texas Commission on Environmental Quality
Mark Vickery, Executive Di¡ector
Stephanie Bergeron Perdue, Deputy Director
Office of Legal Services
Rob ert Martinez, Director
Environmental Law Division
Al-**
Shana L. Horton, StaffAttomey
Environmental Law Division
State Bar No. 24041131
P. O. Box 13087, MC 173
Austin, Texas 7 87 11 -3087
(s1,2) 239-1088
J Staff Attonrey
Bayi¡snm ental Law Division
State Bar No. 24058514
P.O. Box 13087, MC 173
Austin, Texas 787t7-3087
(s12) 23e-2496 9B
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CERTIFICATE OF SERVICE
I hereby certify that on the 21't day of December, 2OOg, the foregoing Executive
Director's Response to Closing Arguments was filed with the Chief Clerk of the Texas
Commission on Environmental Quality and that a tue and correct copy rñ/as forwarded to
each of the parties listed below by the method(s) indicated.
The Honorable Paul Keeper
State Office of AdminisEative Hearings
300 West 15th Street, Suite 502
PlO. Box 13025
Austin, Texas 7 87 ll -3025
Via Fax 572.475.4993
Vi a E-mail to : carmen.montalvo @so atr. state. tx.us
For the Applicant:
Gwendolyn Hill V/ebb
L270Bank of America Center
515 Congress Avenue
P.O. Drawer 1329
Austin, Texas 7 87 67 -1329
Via E-mail to : s\ilen.hill. webb @sbcelob al.net
For OPIC:
Garrett A¡thw
Office of the Public Interest Counsel ll È¡r
TCEQ, MC 103 -t= \