The opinion
ACCEPTED
03-14-00416-CV
3781001
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/15/2015 12:12:27 PM
JEFFREY D. KYLE
CLERK
Case No. 03-14-00416-CV
IN THE FILED IN
3rd COURT OF APPEALS
THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 1/15/2015 12:12:27 PM
JEFFREY D. KYLE
Clerk
BRADLEY B. WARE,
Appel/ant,
v.
TEXAS COMMISSION ON ENVIROMENTAL QUALITY,
Appellee.
ON APPEAL FROM THE 53RD JUDICIAL DISTRICT COURT OF TRAVIS
COUNTY, TEXAS
APPELLANT'S BRIEF
Stephen P. Webb
BarNo. 21033800
s.p.webb@webbwebblaw.com
Gwendolyn Hill Webb
Bar No. 21026300
g.hill.webb@webbwebblaw.com
Attorneys for Appellant
Webb & Webb, Attorneys at Law
211 East Seventh Street
Austin, Texas 78701
Phone: 512-472-9990
APPELLANT REQUESTS ORAL ARGUMENT
Case No. 03-14-00416-CV
BRADLEY B. WARE,
Appellant,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,
Appellee.
IDENTITY OF PARTIES AND COUNSEL
Stephen P. Webb Linda Secord, Asst. Attorney General
BarNo. 21033800 Bar No. 1797400
s.p.webb@webbwebblaw.com Office of the Attorney General
Gwendolyn Hill Webb P.O. Box 12548-MC066
State Bar No. 21026300 Austin, Texas 78711-2548
g. hill.webb@webbwebblaw.com Phone: 512-475-4002
Webb & Webb, Attorneys at Law Fax: 512-320-0911
211 East Seventh Street, Suite 712 Linda.secord@texasattorneygenel'al.gov
Austin, Texas 78701 ATTORNEY FOR APPELLEE,
Phone: 512-472-9990 TEXAS COMISSION ON
Fax: 512-472-3183 ENVIROMENTAL QUALITY
ATTORNEY FOR APPELLANT,
BRADLEY B. WARE
Case No. 03-14-00416-CV
BRADLEY B. WARE,
Appellant,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,
Appellee.
REQUEST FOR ORAL ARGUMENT
Appellant, Bradley B. Ware, requests an oral argument in this case.
ii
TABLE OF CONTENTS
Identify of Parties and Counsel .................................................................................. i
Request for Oral Argument ....................................................................................... ii
Index of Authorities ................................................................................................. vi
Appellant's Brief ........................................................................................................ 1
Statement of the Case ................................................................................................. 2
Statement of Oral Argument ..................................................................................... .4
Points of Error Presented for Review ........................................................................ 4
Statelnent of the Facts ................................................................................................ 5
Background Legal and Factual Framework of Application No. 5594A .................... 7
Points of Error and Brief of Argument ................................................................... 13
Point of Error Number One:
The District Court erred in failing to find that the Commission's April 20, 2010
Order unlawfully ignores the evidence of record regarding the water available for
appropriation by Plaintiff; therefore, the Commission's action in adopting the April
20,2010 Order was arbitrary and capricious, and was characterized by an abuse of
discretion ................................................................................................................ 13
Sumlnary of the ArgUlnent ............................................................................ 13
ArgUlnent.. ..................................................................................................... 13
Point of Error Number Two:
The Commission's April 20, 2010 Order violates the directives and requirement of
Texas Water Code, §11.134 (b), regarding Commission action on water rights
applications .............................................................................................................. 18
Sumlnary of the Argument.. .......................................................................... 18
Argument. ...................................................................................................... 19
iii
Point of Error Number Three:
The District Court erred in failing to find that the Commission's April 20, 2010
Order is in violation of the requirements of Texas Water Code, §11.1381,
regarding the consideration and granting of water rights permits for a term of
years ........................................................................................................................ 21
Summary of the Argument ............................................................................ 21
Argument. ................................ :..................................................................... 21
Point of Error Number Four:
The District Court in failing to find that the Commission's April 20, 2010 Order
violates the fundamental doctrine of water rights law of "first in time, first in
right," as set forth in the Texas Water Code, Section 11.027 ................................. 25
Sumtnary of the Argmnent ................................................................................... 26
Argument. ...................................................................................................... 26
Point of Error Number Five:
The District Court erred in failing to find that the Commission acted arbitrarily and
capriciously to deprive Plaintiff of any continued right to diveti and use any water
at any time for Ware Farm under Permit No. 5594, an authorized appropriation, on
the stated basis of no water available for appropriation, while at the same time
granting water rights for new appropriations and issuing statements of water
availability for other Plaintiffs, new permittees, and other water rights holders .... 32
Summary of the Argmnent ............................................................................ 32
Argmnent ....................................................................................................... 33
Point of Error Number Six:
The District Comi erred in failing to find that the Commission's April 20, 2010
Order adopted Findings of Fact pertaining to a pending non-party applicant;
moreover, the details of said Plaintiff's pending application and proposed
iv
appropriation were unlawfully used as a basis to deny Plaintiffs water right
application ............................................................................................................... 38
SUmtllary of the Argument. ........................................................................... 38
Argument ....................................................................................................... 38
SUtlltllary ................................................................................................................. 42
Prayer for Relief...................................................................................................... 42
Cetiificate of Compliance ....................................................................................... 44
Certificate of Service ............................................................................................... 45
Glossary of Technical Terms .................................................................................. 45
Appendix ................................................................................................................. 46
v
INDEX OF AUTHORITIES
CASES
Balla v. Texas State Board of Medical Examiners, 693 S.W.2d 715-717 (Tex.
App. - Dallas 1985, ref.n.v.e) ...................................................................... 41
Berkley v. Railroad Commission of Texas, 282 S.W.3d 240, 242-244 (Tex. App-
Amarillo 2009, no pet.h.) .............................................................................. 35
Chocolate Bayou Water Company and Sand Supply v. Texas Natural Resource
Conservation Commission, et al., 124 S.W.3d 844, 853 (Tex. App-Austin
2003, pet. denied) .......................................................................................... 29
City of Waco v. Texas Comm'n on Envtl. Quality, 346 S.W.3d 781, 819 - 20
(Tex.App - Austin, pet. denied)] .................................................................. 31
City of El Paso v. Public Utility Com'n. of Texas, 883 S.W.2d 179, 184 (Tex.
1994) ........................................................................................................................ 35
Dodd v. Meno, 857 S.W.2d 575, 576 (Tex. App. - Austin 1993), aff'd on other
grounds, 870 S.W.2d 4 (Tex. 1994) .................................................................. 34, 36
Entex v. Railroad Comm., Texas, 18 S.W.3d 858, 862 (Tex. App. - Austin 2000,
pet. denied) ...................................................................................... 34, 36, 37
Heritage on San Gabriel Homeowners v. TCEQ, 393 S.W.3d 417, 423 (Tex.App.-
Austin 20 12) ................................................................................................. 31
Hernandez v. Meno, 828 S.W.2d 491, 493-495 (Tex. App. - Austin 1992, den.). 40
House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 656 - 657 (Tex. 1965) ........ 29
Langford v. Employees Retirement System of Texas, 73 S.W.3d 560, 564-565 (Tex.
App. - Austin 2002, pet. denied) .................................................................. 35
Lower Colorado River Authority, et aI, v. Texas Department of Water Resources,
689 S.W. 2d 873 (Tex. 1984) ...................................................................... 24
Railroad Commission of Texas v. Home Transportation Company, 670 S.W.2d
319,325 (Tex. App-Austin 1984, no writ) ................................................... 29
vi
Texas Citizens for a Safe Future and Clean Water v. Railroad Commission of
Texas, 254 S.W.3d 492, 496-497 (Tex. App. - Austin 2007, pet. filed) ...... 40
Texas Department ofPublic Safety v. Chad Michael Henson (14-09-0001 O-CV) ... 2
Texas Department of Public Safety v. Guajardo, 970 S.W.2d 602 (Tex. App.-
Hous. [14 th Dist.] 1998) ................................................................................... 2
Texas Farm Bureau, et al v. Texas Commission on Environmental Quality, Cause
No. D-I-GN-12-003937 .......................................................................................... 31
Texas Water Com 'n v. Dellana, 849 S.W.2d 808, 810 (Tex. 1993) ....................... 29
TGS - NOPEC Geophysical Company v. Combs, 268 S.W.3d 637, 651-652 (Tex.
App. - Austin 2008, pet. filed) ..................................................................... 35
TEXAS WATER CODE
§11.021 .................................................................................................................... 11
§11.022 .................................................................................................................... 11
§11.025 ................................................................................................................... 11
§ 11.026 .................................................................................................................... 11
§11.027 .................................................................................................... 4, 25, 26, 27
§ 11.046 .................................................................................................................... 11
§11.046(c) ......................................................................................................... 18,33
§11.121 .................................................................................................................... 11
§11.134 ................................................................................................................. 8,11
§11.134(b) ..................................................................................................... 4,18,19
§11.1381 .................................................................................................. 4,11,21,23
§11.141 ............................................................................................ 11, 26, 27, 28, 41
§ 11.172 .................................................................................................................... 23
TEXAS GOVERNMENT CODE
§2001.005(a) ........................................................................................................... 39
§2001.081 ................................................................................................................ 39
§2001.087 ................................................................................................................ 40
§2001.174(2) ................................................................................................... 39,41
§2001.174(2)(a) ..................................................................................................... 28
§2001.174(2)(c) ..................................................................................................... 39
vii
§2001.174(2)(e) ............................................................................................... 18,39
§2001.174(2)(f) ............................................................................................... 35,39
§2001.175 ............................................................................................................... 29
§2003.047(l)(ln) ...................................................................................................... 15
viii
Case No. 03-14-00416-CV
BRADLEY B. WARE,
Appellant,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,
Appellee.
APPELLANT'S BRIEF
TO THE COURT OF APPEALS:
Appellant, Bradley B. Ware, submits this Brief in appeal of the Order on
administrative appeal affirming the decision of the Texas Quality on
Environmental Quality ("TCEQ", "Commission" or "Agency"). This Appeal is
from the District Court of Travis County, Texas, 53 rd Judicial District, the
Honorable John Dietz presiding in which Appellant was the Plaintiff and Appellee
was the Defendant. For clarity, Bradley B. Ware will be referred to as "Plaintiff'
and the Texas Quality on Environmental Quality will be referred to as
"Defendant."
I. STATEMENT OF THE CASE
Plaintiff, Bradley B. Ware appeals from the 53 rd Judicial District Court of
Travis County, Texas in its failure to overturn the final order of the TCEQ which
denied Plaintiff the right to divert and use water under Permit to Appropriate State
Water No. 5594 ("Permit No. 5594"). Plaintiff asselis that the Commission's April
20, 2010 Final Order of the TCEQ ("Order") violates extant provisions of the
Texas Water Code ("TWC"), and contains obviously reversible legal error. A May
11,2010 decision ofthe Texas Court of Appeals, FOUlieenth District, Houston, in
Texas Department of Public Safety v. Chad Michael Henson (14-09-00010-CV)
sets forth the standards of judicial review of decisions by an administrative agency.
The text of the discussion is set forth in full below:
When reviewing an administrative decision under the
substantial evidence rule, the review court may affirm the
decision in whole or in part. Tex. Gov't, Code Ann. §2001.174
(Vernon 2008). It [the reviewing cOUli] must reverse or remand
the case if the Appellant's substantial rights have been
prejudiced because the administrative findings, inferences,
conclusions, or decision are:
(1) in violation of a constitutional or statutory provision;
(2) in excess of the agency's statutory authority;
(3) made through an unlawful procedure;
(4) affected by other error oflaw;
(5) not reasonably suppOlied by substantial evidence when
considering the record as a whole; or
(6) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
APPELLANT'S BRIEF PAGE 2
[Citing and paraphrasing Tex. Gov't. Code §2001.l74 (Vernon
2008), and Texas Department ofPublic Safety v. Guajardo, 970
S.W.2d 602 (Tex.App-Hous. [14 th Dist.] 1998)]
Generally, as shown below, the Commission's order is in violation of the
fundamental precepts of the Constitution of the United States (5 th and 14th
Amendments) and the Texas Constitution (Art. 1, Bill of Rights, Sections 3 and
19), the Texas Water Code and the Texas Government Code; is in excess of the
Commission's statutory authority; is made through unlawful procedure; is affected
by numerous other errors of law; is not reasonably supported by substantial
evidence when considering the record as a whole; and is on its face arbitrary,
capricious, and characterized by abuse of discretion, or clearly unwarranted
exercise of discretion. The Commission's final order is not entitled to the deference
that agency decisions are typically afforded in a simple substantial evidence
revIew.
Put simply, the Commission's April 20, 2010 Order is subject to reversal
because it finds and concludes that there is water available for appropriation in the
Brazos River Basin in the form of return flows, but reserves the available water to
a pending Applicant-- not an existing appropriator-- and denies water availability
in the current proceeding, against the substantial evidence of record. Th~ trial court
el'l'ed in failing to recognize these deficiencies in the Commission's April 20, 2010
APPELLANT'S BRIEF PAGE 3
Order and erred in rendering its June 11, 2014 order which denied Plaintiffs
appeal.
II. STATEMENT OF ORAL ARGUEMENT
Plaintiff requests oral argument due to the size and complexity of the record
and the numerous factual and legal issues. Plaintiff requests oral arguments to
property address the points of error.
III. POINTS OF ERROR PRESENTED FOR REVIEW
Point of Error One:
The District Court erred in failing to find that the Commission's April 20, 2010
Order unlawfully ignores the evidence of record regarding the water available for
appropriation by Plaintiff; therefore, the Commission's action in adopting the April
20,2010 Order was arbitrary and capricious, and was characterized by an abuse of
discretion.
Point of Error Two:
The Commission's April 20, 2010 Order violates the directives and requirements
of Texas Water Code, §11.l34(b), regarding Commission action on water rights
applications.
Point of Error Three:
The District COUlt erred in failing to find that the Commission's April 20, 2010
Order is in violation of the requirements of Texas Water Code, §11.l381,
regarding the consideration and granting of water rights permits for a term of
years.
Point of Error Four:
The District COUlt in failing to find that the Commission's April 20, 2010 Order
violates the fundamental doctrine of water rights law of "first in time, first in
right," as set forth in the Texas Water Code, Section 11.027.
APPELLANT'S BRIEF PAGE 4
Point of Error Five:
The District Court erred in failing to find that the Commission acted arbitrarily and
capriciously to deprive Plaintiff of any continued right to divelt and use any water
at any time for Ware Farm under Permit No. 5594, an authorized appropriation, on
the stated basis of no water available for appropriation, while at the same time
granting water rights for new appropriations and issuing statements of water
availability for other Plaintiffs, new permittees, and other water rights holders.
Point of Error Six:
The District Court erred in failing to find that the Commission's April 20, 2010
Order adopted Findings of Fact pertaining to a pending non-patty applicant;
Moreover, the details of said Plaintiff's pending application and proposed
appropriation were unlawfully used as a basis to deny Plaintiff's water right
application.
IV. STATEMENT OF FACTS
1. On November 15, 2005, Plaintiff filed Application for Amendment to a
Water Right No. 5594A ("Application No. 5594A") with the Agency for
authority to delete or extend the term of his current water rights Permit No.
5594, which authorized the appropriation of 130 acre-feet of water for
agricultural purposes from the Lampasas River, so that Plaintiff could
continue to operate a family farm that has been owned and operated by the
Ware family in excess of 100 years. Mr. Ware's timely applications was to:
(1) either extend his Permit for another 10-year period or convelt his Permit
to a perpetual right, (2) withdraw 20 more acre-feet of water annually and
(3) irrigate 31 more acres of his farm. Therefore, Plaintiff applied for a
perpetual water right, and if that was not possible, the renewal of his term
permit. A true copy of the Plaintiff's application is attached as Exhibit A
and is fully incorporated into this brief by reference; Clerk's Record p. 63-
75.
2. On October 28 and 29, 2009, an adjudicative hearing was held on the
Agency's case number 2008-0181-WR (SOAR Docket No. XXX-XX-XXXX),
before the State Office of Administrative Hearings ("SOAH") on the
Plaintiff's application. The Executive Director ("ED") of the TCEQ
appeared in Application No. 5594A as a patty to the hearing, opposing the
relief sought by the Plaintiff. In connection with the adjudicative hearing, a
record was made consisting of all pleadings and evidence introduced before
APPELLANT'S BRIEF PAGES
SOAR. Thereafter, the TCEQ considered the Proposal for Decision of
Administrative Law Judge ("ALJ") Paul Keeper on April 14, 2010.
Subsequently, the Agency prepared a final decision, represented by its Final
Order including its Findings of Fact and Conclusions of Law.
3. On April 20, 2010, the Agency rendered its decision in the form of 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. 582-
08-1698 and denied Plaintiffs Application No. 5594A to delete or extend
the term of the current permit and also to authorize the appropriation of an
additional 20 acre-feet of water per annum.
4. The Plaintiff timely filed a Motion for Rehearing ("Motion") to the
Agency's April 20, 2010 Order, and the Motion was overruled by operation
of law by the Agency when the TCEQ failed to act on Plaintiffs Motion
(See Exhibit B, Applicant Bradley B Ware's Motion for Rehearing, exhibits
not attached; Clerk's Record p. 76-98). Notice of the Agency's inaction was
provided to the Plaintiff on June 17, 2010.
5. The Plaintifftimely filed his appeal to the Travis County District Court on
July 8, 2010.
6. All conditions precedent having been performed 01' having occurred, the
Plaintiff was entitled to judicial review of the Agency's decision in
accordance with Texas Water Code §11.134 and the Texas Government
Code, §§2001.175 and 2001.176.
7. On June 11,2014, the District Court issued its order which denied Plaintiffs
appeal ofthe Commission Order.
8. On June 30, 2014, Plaintiff filed his Notice of Appeal.
APPELLANT'S BRIEF PAGE 6
V. BACKGROUND LEGAL AND FACTUAL FRAMEWORK OF
APPLICATION NO. 5594A
1. Application No. 5594A
This application, designated Application No. 5594A by the ED of the TCEQ
and a party to the administrative hearing, is a water rights application by Plaintiff
Bradley B. Ware on behalf of Ware Farms, seeking to renew 01' delete the 10 year
term of his water rights Permit No. 5594. Plaintiff's existing water rights Permit
No. 5594 was granted November 7, 1997 after no person protested the granting the
of application (See, Exhibit A's attachment, Permit No. 5594; Clerk's Record p.
65-66), and authorizes the diversion and use of 130 acre-feet of water for
agricultural purposes for the irrigation of 100 acres of farmland. Permit No. 5594
also contains the following SPECIAL CONDITIONS:
b. The authorization to divert and use 130 acre-feet of water
per year shall expire and become null and void on November 7,
2007 unless prior to such date permittee applies for an
extension hereof and such application is subsequently granted
for an additional term 01' in perpetuity. The priority date of this
permit and all extensions hereof shall be July 1, 1997.
Plaintiff filed Application No. 5594A on November 17, 2005, and the application
was declared administratively complete on March 20, 2006. In Application No.
5594A, Plaintiff sought to add an additional 20 acre-feet of water per annum, and
APPELLANT'S BRIEF PAGE 7
to extend the term of the permit. Notice of Application No. 5594A advised Brazos
River Basin water rights holders:
"Applicant seeks to amend Water Use Permit No. 5594', to
extend or delete the expiration date of November 7, 2007; add
an additional 31 acres for irrigation in Bell County, and to
divert and use an additional 20 acre-feet of water."
In reviewing the application, the Agency Executive Director's Water Availability
staff informed Plaintiff repeatedly that the results from the Brazos River Basin
Water Availability Model ("Brazos WAM" or "WAM") showed that water was not
available for the proposed application at Plaintiffs diversion point on the
Lampasas River in the Brazos River Basin. Plaintiff elected to go forward with a
contested case hearing.
2. Background ofthe Water Availability Question
Plaintiffs water rights application began as a simple question of water
availability and protection of senior and superior water rights in the Brazos River
Basin under Texas Water Code, §11.1342 . Plaintiff was the owner of a term pennit
and applied for a renewal. The Executive Director used the Brazos WAM and
determined that water was not available in sufficient quantities and with sufficient
, Although the Notice prepared by the Executive Director and issued by the Chief Clerk refers to
Plaintiffs water rights permit as a "Water Use Permit," Permit No. 5594, issued by the
Commission is entitled, "PERMIT TO APPROPRIATE AND USE STATE WATER."
2 All section references in this brief are to the Texas Water Code, unless otherwise noted.
APPELLANT'S BRIEF PAGES
frequency to justify granting the application for an additional term. Brazos River
Authority ("BRA"), holder of senior water rights in the Brazos River Basin
protested the application at first, stating that it did not object to the issuance of the
permit for an additional term and with an additional 20 acre-feet. BRA later
withdrew its protest of the application, before the contested case hearing, See
correspondence attached as Exhibit C; Clerk's Record p. 100.
3. The Doctrine of Prior Appropriation as the Cornerstone of Texas Water
Code, Chapter 11
Texas water rights are issued pursuant to the principles of Western water
law, including the doctrine of prior appropriation, which is codified in Texas Water
Code, Chapter 11. The legal principles of Western water law, which grew out of
the experience of the development of the American West, where water was a
scarce and valuable resource. The doctrine of prior appropriation suppOlis the
concepts of govermnent oversight of water resources, deemed essential to
promoting the beneficial use of available water in accordance with the public
welfare. Originally, water rights were given not only based on application to the
State in the form of a certified filing, but also based on proximity of land to a
watercourse. Unfortunately, this dual system was deemed to preclude efficient
government regulation, and the existing riparian rights, certified filings and water
rights permits were unified during the water rights adjudication. Claims under
APPELLANT'S BRIEF PAGE 9
riparian rights, certified filings, and permits were replaced by certificates of
adjudication, and subsequent water rights issued under the permitting system set
forth in Chapter 11. Plaintiff testified at his hearing that, although water was used
on his farm by his great grandfather since 1874 (See Exhibit D, Tr. Vol. 13, p. 19,
line 6 through p. 20, line 4; Clerk's Record p. 102-103 and Tr. Vol. 1, p. 22, line
18 through p. 23, line 3; Clerk's Record p. 105-106.), his parents were involved in
a bitter divorce which diverted their attention from paliicipation in water rights
adjudication (See Exhibit D, Tl'. Vol. 14, p. 21, line 14 through p.22, line 17;
Clerk's Record p. 104-105). After the completion of the Adjudication of Water
Rights in all segments of the Brazos River Basin, Ware Farm was left without any
adjudicated right to appropriate State water. Consequently, after Plaintiff became
owner of Ware Farm, he sought the means to keep the farm operating as a going
concern, including farming crops such as pumpkins and hay for grazing and raising
cattle. In 1997, Plaintiff obtained a water right, Permit No. 5594, which authorized
water use for a term often (10) years (See Exhibit D, Vol. 1, p. 45, line 3 through
p. 47, line 8; Clerk's Record p. 107-109).
Although Texas water rights permitting has evolved from a regulatory
standpoint in the time period following Water Rights Adjudication, the
3In this brief, references to the transcript are designated: Tr. Vol. _, p. _, line _; and followed
by the Clerk's Record page reference.
APPELLANT'S BRIEF PAGE 10
fundamental doctrine of the prior appropriation system remains embedded in Texas
water rights. Those principles are enunciated specifically in the following sections
of Texas Water Code, Chapter 11:
§ 11.021, State Water - Asserts State sovereignty over the surface
waters ofthe State in watercourses
§ 11.022, Acquisition of Right to Use State Water - Provides for the
use of State water by authorized appropriators;
§ 11.025, Scope of Appropriative Right - Sets forth the limitations of
the appropriative rights;
§ 11.026, Perfection of an Appropriation - Provides for perfection of
an appropriation by beneficial use in accordance with the permit;
§ 11.027, Rights Between Appropriators - Provides for resolution of
conflict between appropriators on the basis of "first in time is first in
right;"
§ 11.046, Return Surplus Water - Provides that water authorized to
be appropriated but not needed for the authorized use be returned to
the watercourse for further appropriation and for other uses;
§ 11.121, Pennit Required - Requires the issuance of water rights
permits to authorize appropriation
§ 11.134, Action on Application - Specifies the conditions under
which the Commission may grant a water rights permit;
§ 11.1381, Term Permits - Establishes a means for issuance of term
permits; and
§ 11.141, Date of Priority - Establishes the priority date for water
rights permits as the date the application was filed.
APPELLANT'S BRIEF PAGE 11
Taken as whole, the provisions of the Texas Water Code establish the regulatory
framework for the administration of Texas water rights.
4. Permit No. 5594 Implements Prior Appropriation Doctrine
Plaintiff's Permit No. 5594 embodies the principles of prior appropriation
set forth in the Texas Water Code. Permit No. 5594 specifies the purpose of use
(irrigation); the location ofland to be irrigated [100 acres ofland out of261 acres
in the W. Brown Survey, Abstract No. 67, the D.G. Vicheton (Vecheton) Survey
Abstract No. 851, and the C. Edwards Survey, Abstract 291 in Bell County, Texas;
the water course which is the source of water (Lampasas River, tributary of the
Little River, tributary of the Brazos River); the amount of water authorized to be
used (130 acre-feet); and the diversion point and diversion rate (2.67 cubic feet per
second ("cfs") or 1200 gallons per minute ("gpm")) from any point on the left or
east bank of the Lampasas River]. And, the permit was issued in accordance with
the provisions of § 11.1381 to allow Ware Farm to make beneficial use of State
water in the Brazos River Basin which was stated to be present in the stream but
appropriated to others and which would otherwise go unused until senior water
rights are perfected 5• The priority date is specified as the date the application was
5 The Executive Director's August 28, 1997 Water Availability Analysis (Exhibit F; Clerk's
Record p. 164-178), stated that downstream water rights in the vicinity of Ware Farm on the
Lampasas River, the Little River, and the Brazos River had not been perfected, or "fully
developed," and that, "Therefore, the hydrological analysis only suPPOtt issuance of a ten year
term permit for the Plaintiff." (Exhibit F, more specifically Clerk's Record p. 165)
APPELLANT'S BRIEF PAGE 12
accepted for filing. Finally, under the doctrine of "First in time is first in right,"
the Plaintiff's term permit states unequivocally that the priority date for the permit
"and all extensions hereof shall be July 1,1997."
VI. POINTS OF ERROR AND BRIEF OF ARGUMENT
1. POINT OF ERROR NUMBER ONE.
THE DISTRlCT COURT ERRED IN FAILING TO FIND THAT THE
COMMISSION'S APRlL 20, 2010 ORDER UNLAWFULLY IGNORES THE
EVIDENCE OF RECORD REGARDING THE WATER AVAILABLE FOR
APPROPRlATION BY PLAINTIFF; THEREFORE, THE COMMISSION'S
ACTION IN ADOPTING THE APRlL 20, 2010 ORDER WAS ARBITRARY
AND CAPRlCIOUS, AND WAS CHARACTERlZED BY AN ABUSE OF
DISCRETION.
Summmy ofArgument
The Commission's Order of April 20, 2010 was based upon its staff's refusal
to consider record evidence that completely contradicted the evidence upon which
the staff and the agency relied to make its primary determination. The primary
issue in Plaintiff's application for a perpetual right was whether there was state
water available for appropriation in Plaintiff's section of the Brazos River Basin.
The agency's Executive Director performed a November 14, 2006 analysis that
concluded there was no water available. The record shows that the same Executive
Director performed a 2008 updated analysis on the entire Brazos River basin and
found on an additional 74, 387 acre-feet per year available for appropriation. The
Commission never resolved, on the record, the contradiction between these factual
determinations.
APPELLANT'S BRIEF PAGE 13
Argument
The adopted Findings of Fact regarding water availability and "The
reliability of the Model" in the Commission's April 20, 2010 Order, attached as
Exhibit E (Clerk's Record p. 146-463) are, on their face, inconsistent with each
other, directly contrary to the evidence of record, and founded upon unlawful
procedure. While the Commission is entitled to draw an appropriate inference
from the substantial evidence of record regarding water availability in the Brazos
River Basin, the Commission is not entitled to abuse its discretion by disregarding
the existing evidence of record concerning water availability in favor of outdated
evidence known to be inaccurate.
On November 14, 2006, the Executive Director performed a water
availability review of Mr. Ware's amendment application using the Commission's
Brazos WAM which was current and accurate at the time it was performed. See,
Exhibit G (Clerk's Record p. 179-181), attached hereto. Two years later, however,
the Executive Director preformed another water availability review of the Brazos
River Basin using updated information which was not available at the time Mr.
Ware's application was reviewed. The Executive Director updated the Brazos
WAM's Current Conditions data set and found that there was an additional 74,387
acre-feet per year available for appropriation in the Brazos River Basin. See,
Exhibit H (Clerk's Record p. 182-196), also attached hereto.
APPELLANT'S BRIEF PAGE 14
It is undisputed in the record that Mr. Ware's amendment application did not
benefit from the Executive Director's 2008 update of the Brazos WAM, which
occurred well before the contested case hearing on Plaintiff's Application No.
5594A. The Executive Director's staff hydrologist, Jeffrey Charles Thomas,
testified at the hearing that neither he nor anyone else in the Executive Director's
office performed a water availability review of Mr. Ware's application, other than
the one completed on November 14, 2006 and included in Exhibit H (Clerk's
Record p. 182-196). The same witness also testified that no portion of the 74,387
acre-feet found to be available in the Brazos River Basin in 2008 and set fOlih in
Exhibit H (Clerk's Record p. 182-196) was ever applied to Mr. Ware's application
or the Executive Director's analysis of water availability for the Ware application6 .
In considering the Plaintiff's argument regarding water availability based on
return flows and updated information, the Commissioners appeared to believe that
their questioning of Commission staff during the April 14, 2010 Commission
Agenda meeting on the Proposal for Decision on Application No. 5594A regarding
consideration of return flows and water availability was a lawful substitute for the
evidence of record. This procedure is not lawful. The Commission's decision
must be based on the evidence of record, not the earnest responses of Commission
staff at Agenda, which responses are not contained in the administrative record
6(Attached as Exhibit D, Tr. Vol. 1 p. 109 line 6 - 110 line 8; Clerk's Record 112-113; and pp.
134 line 9 -154 line 24; Clerk's Record p. 125-145)
APPELLANT'S BRIEF PAGE 15
upon which the decision must be based? TCEQ staff hydrologist Kathy Alexander,
(now Ph.D.) responded to Commission inquiries stating that the Executive Director
had included the return flows shown on Exhibit H, attached hereto, in its
consideration of water available for Plaintiff's proposed appropriation. .This
statement is directly contr(lry to the testimony of TCEQ staff during the hearing,
including Dr. Alexander, regarding the consideration of 74,384 acre-feet of water
shown to be available in the updated Current Conditions data set of the Brazos
WAM. The evidence of record, as shown in an excerpt of the official transcript, is
set fOlih below.
CROSS EXAMINATION OF JEFFREY CHARLES THOMAS, TCEQ
HYDROLOGIST ON
THE BRADLEY B. WARE APPLICATION
Transcript, Bradley B. Ware SOAH Contested Case Hearing October 28, 2009,
Page 149, line 24 to Page 150, line 2:
Q. Okay, the point is you didn't use any portion of that additional
water in the basin in your model?
A. That's correct.
Transcript, Bradley B. Ware SOAH Contested Case Hearing October 28, 2009,
Page 150, lines 10 through 19:
Q. Additional unappropriated water would benefit the entire basin,
wouldn't it?
A. Yes.
Q. And so it doesn't matter whether it's above Stillhouse Hollow Lake,
below it? It would benefit everyone, wouldn't it?
7 Texas Gov. Code §2003.047(l)(m)
APPELLANT'S BRIEF PAGE 16
A. It would benefit everyone downstream of it and potentially that-yes,
I can-say that it would benefit everyone in the basin, yes.
CROSS EXAMINATION OF KATHY ALEXANDER, TCEQ HYDROLOGIST
EXECUTIVE DIRECTOR'S REBUTTAL WITNESS ON THE BRADLEY B.
WARE APPLICATION
Transcript, Bradley B. Ware SOAH Contested Case Hearing October 29, 2009,
Page 378, line 15 to Page 379, line 8:
Q. Okay. And so there were return flows available and you gave them a
priority date of October 15, 2004?
A. Yes.
Q. Okay. You mentioned that there were 74,387 acre-feet of return flows
resulting from different discharges up and down the Brazos River
Basin determined to be available by TCEQ hydrology?
A. Yes.
Q. And those are the return flows that were given the October 15, 2004,
priority date?
A. Yes.
Q. Okay. And that-and none of those return flows, not any portion of
them were allocated for use by Mr. Ware under either a 1997 priority
date or any other priority date?
A. The return flows were considered and -
Q. Yes or no, Ms. Alexander.
A. No.
Therefore, to the extent that the Commission's April 20, 2010 Order contains
Findings of Fact which state that water is not available for continued appropriation
in the Brazos River Basin, under the Brazos WAM, such Findings of Fact are not
reasonably supported by substantial evidence when considering the record as a
whole. Exhibit H (Clerk's Record p. 182-196) shows that 74,387 acre-feet of water
APPELLANT'S BRIEF PAGE 17
per year are available in the Brazos River Basin in the latest version of the Brazos
WAM. 8
Texas law does not confer upon the Commission discretion to disregard the
evidence ofrecord. Tex. Gov't Code, §2001.174(2)(E) requires a reviewing court
to reverse an order of the Commission that is not reasonably supported by
substantial evidence considering the reliable probative evidence in the record as a
whole. The only reliable evidence is that Mr. Ware's application never received a
water availability review which referenced the amount of water now known to be
available for appropriation in the Brazos River Basin. The Commission's reliance
on the outdated water availability information included in Exhibit H (Clerk's
Record p. 182-196), known to be superseded by more reliable and updated
information in Exhibit H (Clerk's Record p. 182-196) deprives the Commission's
April 20, 2010 Order of any legitimacy under the law and constitutes an obvious
abuse of the Commission's discretion.
2. POINT OF ERROR NUMBER TWO.
THE COMMISSION'S APRIL 20, 2010 ORDER VIOLATES THE DIRECTIVES
AND REQUIREMENTS OF TEXAS WATER CODE, § 11.134(B), REGARDING
COMMISSION ACTION ON WATER RIGHTS APPLICATIONS.
8The Commission was only willing to use the evidence of water availability under the Brazos
WAM in favor of an application filed by Brazos River Authority, as shown in its adoption of
Findings of Fact Nos. 42-52.
APPELLANT'S BRIEF PAGE 18
Summmy ofArgument
The Commission's April 20, 2012 Order fails to comply with Texas Water
Code § 11.134(b). Under the agency's erroneous construction of Texas Water Code
§ 11.046(c), the Commission specifically and erroneously "reserves" state water
that was available for appropriation for a subsequent pending applicant, rather than
a senior water right holder.
Argument
Pertinent requirements of Texas Water Code, § 11.134(b) is:
(b) The Commission shall grant the application only if:
(1) 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 impair existing water rights or vested
riparian rights;
(C) is not detrimental to the public welfare;
(D) considers any applicable environmental flow
standards established under Section 11.1471 and, if
applicable, the assessments performed under
Sections 11.147(d) and (e) and Sections 11.150,
11.151, and 11.152; and
(E) addresses a water supply need in a manner that
is consistent with the state water plan and the
relevant approved regional water plan for any area
in which the proposed appropriation is located,
unless the commission determines that conditions
warrant waiver of this requirement; and
APPELLANT'S BRIEF PAGE 19
(4) The Applicant has provided evidence that reasonable
diligence will be used to avoid waste and achieve water
conservation as defined by Section 11.002(8) (B).
The Findings of Fact and Conclusions of Law in the Commission's April 20, 2010
Order do not address the requirements of Texas Water Code, §11.134(b). To the
extent that the Conclusions of Law ultimately denying Application No. 5594A
flow from the Findings of Fact regarding water available for appropriation in the
Brazos River Basin, they are not reasonably supported by substantial evidence
when considering the record as a whole; are arbitrary or capricious or characterized
by abuse of discretion or clearly unwarranted exercise of discretion. Moreover, the
Commission's Apri120, 2010 Order also violates Texas Water Code, §11.134(b) as
well. The Commission's Order states:
44. The addition of "new water," [return flows] 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 new
allocation.
Finding of Fact No. 44 clearly fails to incorporate the most recent amendments to
§11.046(c) as discussed herein below. Finding of Fact No. 44 presents an unlawful
interpretation of Commission requirements under Texas Water Code, §11.134(b),
which is only highlighted by the subsequent contradictory finding that: .
45. The full amount [described in Finding of Fact No. 49 as
421,449 acre-feet of water pel' year] of the Brazos River
Authority's requested return flows become available only at the
furthest downstream point m the basin; diversions at other
APPELLANT'S BRIEF PAGE 20
points are possible due to specific facts and circumstances of
that application.
The Commission is charged with granting water rights applications when it finds
that water is available for appropriation. Instead of discharging its statutory
responsibilities in accordance with Texas Water Code, § 11. 134(b), and granting
Plaintiff a continued right to appropriate 150 Acre-feet of water dating from his
July 1, 1997 priority date, the Commission's April 20, 2010 Order "allocated" the
water available for appropriation in the Brazos River Basin to a subsequent
applicant, BRA, in an application yet to be completed at SOAR, even as of the date
of this appeal to the Court of Appeals.
3. POINT OF ERROR NUMBER THREE.
THE DISTRlCT COURT ERRED IN FAILING TO FIND THAT THE
COMMISSION'S APRIL 20, 2010 ORDER IS IN VIOLATION OF THE
REQUIREMENTS OF TEXAS WATER CODE, §11.138l, REGARDING THE
CONSIDERATION AND GRANTING OF WATER RIGHTS PERMITS FOR A
TERM OF YEARS.
SUlnmmy ofArgument
The Commission's April 20, 2010 Order fails to comply with Texas Water
Code § 11.1381, regarding an appropriation of state water for a term of years. The
Commission inappropriately evaluated Plaintiff's application, that included a
APPELLANT'S BRIEF PAGE2!
request to renew his term permit, in consideration of its impact on a pending
applicant, rather than a senior water right holder.
Argument
Texas Water Code §11.1381 states:
Sec. 11.1381. TERM PERMITS. (a) Until a water right is
perfected to the full extent provided by Section 11.026 of this
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 ifthe commission finds that there
is a substantial likelihood that the issuance of the permit will
jeopardize financial commitments made for water projects that
have been built or that are being built to optimally develop the
water resources of the area.
(c) The commission shall refuse to grant an application
for 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
beneficially 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.
Accordingly, even the Commission's unlawful recognition of the availability
of return flows in the Brazos River Basin, albeit solely for use under BRA's
pending water rights application, is unspoken Commission recognition that the
APPELLANT'S BRIEF PAGE 22
evidence of record shows there is water available for appropriation for Plaintiffs
diversion and use, at least for a term of years. BRA still has only a pending
application for a proposed appropriation. The water that the Commission's April
20, 2010 Order finds available for that proposed appropriation by BRA is, by
definition, available to Plaintiff under his 1997 priority date before any new
appropriation by BRA with a 2004 priority date is authorized by the Commission.
Additionally, the evidence of record is that BRA is using only 20% of its existing
Stillhouse Hollow Lake water right, the closest and most pertinent water right to
Plaintiff. Tex. Water Code §11.1381 requires the holder of a senior
appropriative water right to "demonstrate that the issuance of a term permit
would prohibit the senior appropriative water right holder from beneficially using
the senior right during the term of the term permit." In this case, there was no
senior apptopriator party-- BRA withdrew; And, there could have been no
demonstration of harm to BRA because it only has a pending application, not any
right to appropriate the 421,449 acre-feet per year of return flows found to be
available for appropriation in the Brazos River Basin under the Commission's
April 20, 2010 Order. There was no demonstration ofhann to any other existing
water rights holder in the Brazos River Basin, on the facts of record in this
contested case hearing.
APPELLANT'S BRIEF PAGE 23
In this case, the TCEQ is essentially implementing a cancellation program
for term permits. The problem with the TCEQ's program is that through the Texas
Water Code, the Texas Legislature has authorized the Commission to cancel
permits for failure to put all or a part of the water to beneficial use for ten (10)
years or more. (See, Texas Water Code, § 11.1729) This is the same directive
given by the Texas Supreme Court in reviewing actions of the predecessor agency
to the TCEQ in the "Stacy Dam case," Lower Colorado River Authority, et aI, v.
Texas Department of Water Resources, 689 S.W. 2d 873 (Tex. 1984), the most
recent comprehensive review on water law in this State. In that case, just as in the
case at bar, we are all called to consider the issue of how to make the best use of
the state's resources during times of water shortage, when questions of water
availability become most pronounced.
The problem with the Commission's actions in this case, is that TCEQ
attempts to effect a cancellation of a water right by a party who the evidence of
record shows has put the water to beneficial use in the last ten years. In the "Stacy
Dam case," the Texas Supreme Court told the TCEQ that it had to honor
appropriations in accordance with the prior appropriation system of the Texas
Water Code. Specifically, the Texas Supreme Court stated:
9 Sec. 11.172.' GENERAL PRINCIPLE. A permit, certified filing, or certificate of adjudication
is subject to cancellation in whole or part for 10 years nonuse as provided by this subchapter.
APPELLANT'S BRIEF PAGE 24
Section 11.146(e), by providing that water granted under any
permit is not again subject to a new permit to appropriate until
the permit has been cancelled in whole or in part, is consistent
with the overall legislative purpose [of providing security for
investors that water needed for a project will be there when the
proj ect is built].
Id, at p. 877.
In other words, under extant provisions of the Texas Water Code, the TCEQ has
two avenues to provide for water for additional appropriation:
(1) It can make use of surplus water returned to the stream in the form of
return flows after use by authorized appropriators under Texas; or
(2) It can undertake a cancellation program as specified in Texas Water
Code, Chapter 11, Subchapter E. Cancellation of Permits, Certified
Filings, and Certificates of Adjudication for Nonuse.
In order to grant new water rights and provide for a growing Texas economy, the
TCEQ must cancel water rights-that is, de-appropriate the water-ii'om people
who are not using the water. The problem, with the current TCEQ practice of
changing priority dates and cancelling term permits is that the Agency seeks to
cancel water rights of people who are using their water, in favor of those who have
yet to be authorized to use the return flows made available under Texas Water
Code, § 11.046. In other words, instead of following the Stacy Dam case directive
to consider only water not subject to a duly issued Permit to Appropriate State
Water, the TCEQ seeks to impose an unofficial "back door" cancellation program
APPELLANT'S BRIEF PAGE2S
of water rights which were issued for a term of years, even where the permittees
are seeking to continue to use the water as originally authorized, and even though
additional water in the form of return flows has become available legally to satisfy
that continued use.
4. POINT OF ERROR NUMBER FOUR.
THE DISTRICT COURT IN FAILING TO FIND THAT THE COMMISSION'S
APRIL 20, 2010 ORDER VIOLATES THE FUNDAMENTAL DOCTRINE OF
WATER RIGHTS LAW OF "FIRST IN TIME, FIRST IN RIGHT," AS SET
FORTH IN THE TEXAS WATER CODE, SECTION 11.027.
Summmy ofArgument
The Commission's April 20, 2012 Order violates the doctrine of prior
appropriation and is based upon an unlawful procedure that was prejudicial to the
Plaintiff. Under Texas Water Code § 11.141, the Commission is obligated to use
the priority date of the applicant to determine the availability of state water for
appropriation. Plaintiff filed an application that should have been given a July 1,
1997, based on a previous order of the Commission. The agency order which set
Plaintiff's priority date was final order over which the Commission had lost
jurisdiction. Without notice to the Plaintiff or opportunity for him to protest, the
Commission's staff changed the priority date of Plaintiff's application to Janumy
5, 2006. Then, the agency compared this "new" priority date unfavorably to the
APPELLANT'S BRIEF PAGE 26
2004 priority rate of a pending applicant. The Commission's order is unlawful and
is based on unlawful procedure.
Argument
Texas water law established long ago the prior appropriation doctrine of
"first in time, first in right" to resolve disputes between appropriators and potential
appropriators of State water. The Texas Legislature codified the doctrine in the
Texas Water Code, § 11.027 and fUliher defined the priority of an appropriation at
Texas Water Code, §I1.I41. When the Commission issued Mr. Ware's original
Permit No. 5594 to "Appropriate and Use State Water" in 1997, the Commission's
inclusion of Special Condition 3(b) merely memorializes the "first in time first in
right" doctrine in Texas Water Code, §I1.027 and § 11.141. Special Condition 3(b)
states, unequivocally:
"The priority date of this permit and all extensions hereof shall be July 1,
1997."
Sections 11.027 and 11.141 protect the appropriation of State water, not an
application for an appropriation, or for a proposed appropriation of State water.
The intent of the Texas Water Code is obvious, on this point. The priority date of
July 1, 1997 included in Permit No. 5594 establishes the priority of Plaintiff's
appropriation; Tex. Water Code, §I1.14I states:
Sec. 11.141. DATE OF PRIORITY. When the commIssIon
issues a permit, the priority of the appropriation of water and
the claimant's right to use the water date from the date of filing
of the application.
APPELLANT'S BRIEF PAGE 27
The priority date applies to the original appropriation, regardless of whether the
appropriation is authorized for a term of years or in perpetuity.lO Where the
appropriation is perpetual, the date of the original application, and the priority date
would not change. When the appropriation is for a term of years, necessitating re-
application if the appropriator wished to retain the water right, there could be
confusion about which "application" date controlled. Logically, on a renewal of an
existing appropriation it would remain the date of the original application.
However, the Commission in 1997 eliminated all confusion and ambiguity by
expressly and correctly interpreting Texas Water Law and including Special
Condition 3(b) ofpermit No. 5594.
When the Executive Director and, ultimately, the Commission, changed Mr.
Ware's priority date to January 5, 2006 (Finding of Fact 48) the action violated
§11.141 of the Water Code and §2001.174(2)(A) of the Government Code. The
exact process of "changing" a final order of a state agency where the agency had
lost jurisdiction over the contested case years before, was never explained during
the hearing. The record shows that the Commission's Executive Director's Staff
never notified Plaintiff that is had changed his 1997 priority date when it did so
"administratively." When the Executive Director's representative was pressed
to In water rights, this is known as the "doctrine of relation back," meaning the right to
appropriate relates to the first point in time (as ofthe date of the completed application) that the
state could have authorized the appropriation.
APPELLANT'S BRIEF PAGE2S
about the procedure, or the exact nature of the "policy" that was used to change
Plaintiff s priority date, the witness could not answer the questioning". In fact, the
presiding SOAH ALJ prevented fUliher questioning about this important factor in
the Agency's pre-hearing consideration of Plaintiffs application l2 • Because the
record could not be completed, whether it was because of the limitations of the
Executive Director's representative, or the failure of the witness to know the policy
used to change Mr. Ware's permit, the Court is allowed to examine the TCEQ
procedural irregularities that occurred within the Executive Director's Office. [Tex.
Gov't Code §2001.175; See Tex. Water Com 'n v. Del/ana, 849 S.W.2d 808,810
(Tex. 1993)]
The record is clear that the Commission's Executive Director's staff did not
model 13 or determine water availability to meet the requests in Mr. Ware's
amendment application with a 1997 priority date. Therefore, the Commission's
administrative record lacks competent evidentiary support for a determination of
available water in the Brazos River Basin if the staff had modeled Plaintiffs
application correctly.
11 (Attached as Exhibit D, Tr. Vol. 1, p. 116 line 8 - 124 line 25; Clerk's Record p. 114-122)
12 (Attached as Exhibit D, Tr. Vol. 1, p. 125 line 1 -126 line 7; Clerk's Record p. 123-124)
13 By "model" we mean use the agency's Brazos River Basin Water Availability Model
computer based simulation of available water within the basin that takes into account inflows,
evaporation and channel losses, and the rights granted to senior water rights holders within the
basin.
APPELLANT'S BRIEF PAGE 29
Of course, Texas law prohibits the collateral attack of an order derived from
a closed contested case. Chocolate Bayou Water Company and Sand Supply v.
Texas Natural Resource Conservation Commission, et al., 124 S.W.3d 844, 853
(Tex. App - Austin 2003, pet. denied) This prohibition extends to the agency itself.
In Railroad Commission of Texas v. Home Transportation Company, 670 S.W.2d
319,325 (Tex. App - Austin 1984, no writ) the Court held; "Agencies are entitled
to interpret their own orders, for administrative purposes, so long as the agency
does not use the occasion to interpret as a means to amend the prior order."
Even if the Executive Director sought to "change" or otherwise "interpret" the
plain, unambiguous priority date listed in Plaintiffs permit during the hearing, the
cited case law would prevent such a collateral attack of a determination and grant
of a water right that has been made by a previous Agency decision. What is more
egregious to Mr. Ware's due process rights is that Mr. Ware's permit was amended
by a unilateral staff action, without notice and oppOliunity for Mr. Ware to
adjudicate the change or even comment on the change.
The effect of the action was that Mr. Ware was deprived of a right (a water
right with a 1997 priority date) conferred by the original Commission order issuing
Permit No. 5594 without any notice and opportunity to respond to the removal of
the right. A new, far less senior priority date was used, improperly, in the
Executive Director's November 14, 2006 Water Availability Review of Mr.
APPELLANT'S BRIEF PAGE 30
Ware's application and formed the basis for the denial of Mr. Ware's application.
Therefore, the Commission's order denying Mr. Ware's application on the basis of
the change in priority date, also violated Tex. Gov't. Code §2001.174(2)(C).
Moreover, in House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 656 - 657
(Tex. 1965), the Texas Supreme Court held that even a person who is granted a
privilege under the state's police power such as a licensee, is entitled to procedural
due process when that license is taken away. Mr. Ware was granted an important
and valuable priority date of July 1, 1997. He was entitled to procedural due
process when it was taken away by the Executive Director's staff without notice
and the opportunity for a hearing on the removal of the priority date. The agency
compounded the error when it ratified the Executive Director staffs action by
issuing a final order.
The TCEQ's Final Order itself indicates that the priority date ofMr. Ware's
application is relevant. The Final Order includes findings 49, 50, and 51, peliaining
to BRA's application for a system water right. Assuming that all findings of fact
are necessary and relevant to the TCEQ's Conclusion of Law and ultimate decision
[See Heritage on San Gabriel Homeowners v. TCEQ, 393 S.W.3d 417, 423
(Tex.App. - Austin 2012); citing City of Waco v. Texas C0111111 'n on Envtl. Quality,
346 S.W.3d 781, 819 - 20 (Tex.App - Austin, pet. denied)], we can only assume
that BRA's October 15,2004 priority date (Finding 50) as a competing applicant is
APPELLANT'S BRIEF PAGE 31
part of the reason why Mr. Ware's application, using a January 5, 2006 priority
date (Finding 48) was denied. (Finding 51).
The Texas State District Court in Travis County has already considered the
importance of recognizing the priority of water rights for agricultural use in Texas
Farm Bureau, et al v. Texas Commission on Environmental Quality, Cause No. D-
I-GN-12-003937, and found the TCEQ Drought Curtailment Rules, 30 Texas
Administrative Code §§ 36.1-36.8, are invalid because:
1. The rules exceed TCEQ's statutory authority because
they allow exemption of preferred uses from a curtailment or
suspension order, and such exemptions are not in accordance
with the priority of water rights established by Texas Water
Code § 11.027; and
2. Exemption of junior water rights from a priority call and
curtailment or suspension order [meaning administering water
rights during a time of shortage by putting later water users in
front of earlier priority water users] is not authorized by
TCEQ's police power or any general authority to protect the
public health; safety, or welfare.
[Parenthetical explanatory comments supplied. June 6, 2013,
Order on Cross Motions for Summary Judgment, the Honorable
Scott H. Jenkins]
5. POINT OF ERROR NUMBER FIVE.
THE DISTRICT COURT ERRED IN FAILING TO FIND THAT THE
COMMISSION ACTED ARBITRARILY AND CAPRICIOUSLY TO DEPRIVE
PLAINTIFF OF ANY CONTINUED RIGHT TO DIVERT AND USE ANY
APPELLANT'S BRIEF PAGE 32
WATER AT ANY TIME FOR WARE FARM UNDER PERMIT NO. 5594, AN
AUTHORIZED APPROPRIATION, ON THE STATED BASIS OF NO WATER
AVAILABLE FOR APPROPRIATION, WHILE AT THE SAME TIME
GRANTING WATER RIGHTS FOR NEW APPROPRIATIONS AND ISSUING
STATEMENTS OF WATER AVAILABILITY FOR OTHER PLAINTIFFS,
NEW PERMITTEES, AND OTHER WATER RIGHTS HOLDERS.
SUn1n1my ofArgument
The Commission's April 20, 2010 Order IS based on an erroneous
construction of Texas Water Code § 11.046(c) peliaining to the availability of
return flows for re-appropriation; and is based on an unlawful procedure. The
Commission's construction of Texas Water Code §11.046(c) is erroneously in that
it included a limitation on the availability of return flows for reappropriation that
was not imposed on return flows by the Texas Legislature. This erroneous agency
construction ofthe applicable law is not entitled to deference by this court. Further,
the Commission's Order then unlawfully reserves these return flows that should
have been available to the Plaintiff, for the benefit of a subsequent, pending
applicant.
Argument
The Commission's April 20, 2010 Order denying Plaintiffs amendment
application is made through the unfair and unlawful procedure of denying some
Plaintiffs Brazos River Basin access to water available for appropriation in the
APPELLANT'S BRIEF PAGE 33
form of return flows or updated information on water availability. Texas Water
Code § 11.046(c) states:
§ 11.046(c). Except as specifically provided otherwise in the water
right, water appropriated under a permit, certified filing, or certificate
of adjudication may, prior to its release into a watercourse or stream,
be beneficially used and reused by the holder of a permit, certified
filing, or certificate of adjudication for the purposes and locations of
use provided in the permit, certified filing, or certificate 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 filing, or certificate of
adjudication.
(Emphasis supplied)
The Commission's order, which recogmzes the presence of "the full amount
[421,449 acre-feet of water per year] of BRA's requested return flows," but also
denies that 150 acre-feet of water is available for Plaintiff's continued
appropriation, is founded upon unlawful procedure. Plaintiff asserts that the
Executive Director's and TCEQ's erroneous interpretation of §11.046(c) is not
subject to the usual substantial evidence review by this court because it is clearly a
question of law and the TCEQ's interpretation is not entitled to a presumption of
validity [Entex v. Railroad COl11m., Texas, 18 S.W.3d 858, 862 (Tex. App. - Austin
2000, pet.denied); Dodd v. Meno, 857 S.W.2d 575, 576 (Tex.App. - Austin 1993),
APPELLANT'S BRIEF PAGE 34
affd on other grounds, 870 S.W.2d 4 (Tex. 1994)] The Texas Water Code and
Commission rules do not provide for reservation of state water available for
appropriation to ji/ture Plaintifft. There is no law or rule, and consequently no
legal justification for the Commission's actions denying a requested appropriation
for Ware Farm while granting or providing documentation to support granting,
perpetual or long term permits for other later applicants and future appropriators.
Moreover, the arbitrary limitations that the Executive Director placed on the
availability of retulU flows for re-appropriation is not supported by the law or even
the potentially changing position of the TCEQ on the proper appropriation of
retulU flows. The Executive Director's witnesses testified that Plaintiffs
application was not reviewed assuming that retulU flows upstream of Mr. Ware's
diversion point were available for re-appropriation 14 • Dr. Alexander testified that
the Executive Director asselis that retulU flows are available for re-appropriation
only to the entity that discharged such retulU flOWS 15 • Plainly, this qualification on
the availability of retulU flow for re-appropriation is not contained in §11.046(c),
cited herein. The consideration of a pending application of a non-patiy applicant
and use of such legally irrelevant factors is evidence that the TCEQ's Denial of
Plaintiffs application was arbitrary and capricious. [See City of El Paso v. Public
14 (See Exhibit D, Tr. Vol. 1 p. 109 line 6 - 110 line 8; Clerk's Record p. 112-133 and pp. 134
line 9 -154 line 24; Clerk's Record p. 125-145)
15 (See Exhibit J, Tr. Vol. 2 p. 377 line 10 - 379 line 8; Clerk's Record p. 224-226)
APPELLANT'S BRIEF PAGE 35
Utility Com'n. of Texas, 883 S.W.2d 179, 184 (Tex. 1994)] Further, it is evidence
that the agency's final order is characterized by an abuse of discretion or a clearly
unwarranted exercise of discretion [Tex. Gov't Code §2001.174(2)(F); Berkley v.
Railroad Commission of Texas, 282 S.W.3d 240, 242-244 (Tex.App - Amarillo
2009, no pet.h.); Langford v. Employees Retirement System of Texas, 73 S.W.3d
560, 564-565 (Tex. App. - Austin 2002, pet. denied); TGS - NOPEC Geophysical
Company v. Combs, 268 S.W.3d 637, 651-652 (Tex. App. - Austin 2008, pet.
filed)] In addition the Executive Director's erroneous interpretation of §11.046(c)
is at odds with BRA's position in the pending application that the TCEQ references
in its Final Order. BRA seeks all available return flows in its pending application.
Since the issuance of the TCEQ's Final Order in Mr. Ware's case, BRA's
application has been heard, considered by the Commission, and remanded to the
ALJ's for further hearing. The Administrative Law Judges who heard BRA's
application in Brazos River Authority's System Operation Permit Application No.
5851 ("BRA Application No. 5851") issued a proposal for decision with a
construction of §11.046(c) consistent with BRA's and Plaintiff's interpretation of
§ 11.046(c). The ALJs concluded that the Executive Director's interpretation was
erroneous and in conflict with the plain language of the statute. See excerpts of the
Proposal for Decision, BRA Application No. 5851, attached as Exhibit I; Clerk's
Record p. 197-222.
APPELLANT'S BRIEF PAGE 36
The real reason the TCEQ determined that there is no water available for
Mr. Ware is because the TCEQ Staff has construed the law to exclude return flows
as a basis for a new appropriation under certain unspecified and uncodified
conditions. The TCEQ may wish to invoke the protections of "substantial evidence
review" and point to the "more than substantial evidence" to support its order; but
the lynch-pin of the TCEQ's argument is its construction of the controlling
statutOlY authority: § 11.134(b) and, consequently § 11.046 of the Texas Water
Code. Therefore, the TCEQ's Final Order in Mr. Ware's application is not entitled
to the deference ofthis Court. [Entex v. Railroad Comm., Texas, 183 S.W.3d 858,
862 (Tex. App. - Austin 2000, pet. denied); Dodd v. Meno,857 S.W.2d 575, 576
(Tex. App. - Austin 1993, affd on other grounds, 870 S.W.2d 4 (Tex. 1994)] The
case-law is clear: a court reviewing a state agency's construction of controlling
statutory authority is entitled to substitute its interpretation of the law for that used
by the state agency. (Entex, supra) Moreover, it is important that this court provide
its construction is a matter of first impression. As noted in the proposal for decision
in BRA's actual pending application [SOAR Docket No. XXX-XX-XXXX; TCEQ
Docket No. 2005-1490-WR; On Re: Concerning the Application by the Brazos
River Authority for Water Use Permit No. 5851 and Related Filings] (A relevant
excerpt was attached as Exhibit I to Plaintiffs Initial Brief), the issue of the
appropriate use of return flows is a matter "in play" still under consideration and
APPELLANT'S BRIEF PAGE 37
subject to interpretation at the TCEQ. The legal construction of Texas Water Code,
§ 11.046(c) is crucial to Mr. Ware in his application and this appeal.
The importance of fair and accurate water availability analysis by the
Commission, has its basis, not only in the Texas Water Code, but also in principles
of fundamental fairness, and prohibition against property deprivation without
compensation or due process, under the Constitution of the United States of
America and the Texas Constitution. Water rights are propeliy rights, and the
termination or denial of those rights without just cause or fair compensation
amounts to an unauthorized use of the State's police powers. The Commission, in
every water rights case, must act in a just and reasonable way. Reliance on
erroneous or outdated data, refusal to apply facts as dictated by statute, operating in
accordance with non-existent rules and procedures unlawfully compromise the
Commission's water rights regulation. Above everything, Plaintiff should not be
denied under Commission procedures which determine water availability based on
unspecified procedures and non-public rules which favor some Plaintiffs over
others without regard to the statutory mandate, "As between appropriators, the
first in time in the first in right.
6. POINT OF ERROR NUMBER SIX.
THE DISTRICT COURT ERRED IN FAILING TO FIND THAT THE
COMMISSION'S APRIL 20, 2010 ORDER ADOPTED FINDINGS OF FACT
APPELLANT'S BRIEF PAGE 38
PERTAINING TO A PENDING NON-PARTY APPLICANT; MOREOVER,
THE DETAILS OF SAID PLAINTIFF'S PENDING APPLICATION AND
PROPOSED APPROPRIATION WERE UNLAWFULLY USED AS A BASIS
TO DENY PLAINTIFF'S WATER RIGHT APPLICATION.
Summmy ofArgument
The Commission's April 20, 2010 Order is unlawful and voidable on its face
because is it based upon consideration given to a non-patty, pending applicant, to
the detriment of the Plaintiff.
Argument
The Commission's April 23, 2010 Order contains Findings of Fact 45, 49,
50 and 51; which refer to the unidentified application of Brazos River Authority, a
non-patty. These findings of fact regarding the ongoing contested application of a
non-patty were used as a basis to deny Mr. Ware's application. Therefore, the
Commission order violated Tex. Gov't. Code §2001.174(2) because the decision
was made through unlawful procedure [§2001.174(2)(C)]; it was not reasonably
supported by substantial evidence considering the reliable and probative evidence
in the record as a whole [§2001.174(2)(E)]; and was arbitrary and capricious and
was characterized by an abuse of discretion [§2001.174(2)(F)]. The referenced
Findings of Fact Nos. 45, 49, 50 and 51 appear to refer to pending water rights
BRA Application No. 585l. However, as of its April 14, 2010 consideration of the
Proposal for Decision in Plaintiff's case, the Commission had yet to even consider
that pending application in an open meeting lawfully convened pursuant to the
APPELLANT'S BRIEF PAGE 39
Texas Open Meeting Act, Tex. Gov't. Code Chapter 551 et. seq. and, of course,
had not rendered any final order granting all or any portion of BRA's proposed
appropriation. [See Tex. Gov't. Code §2001.005(a)]
On April 28, 2010, the Commission referred BRA's Application No. 5851 to
SOAR granting the requests for a contested case hearing of several protestants.
The hearing before SOAR is subject to the Texas Rules of Evidence in a non-jury
civil trial. (See Tex. Gov't. Code §2001.081) BRA was not a party to Mr. Ware's
application, and no witness on behalf of BRA was sponsored to verify any pOliion
of Application 5851 or any other application filed by BRA. Even more
impOliantly, Plaintiff was provided no oppOliunity to cross examine or otherwise
determine the validity of any evidence associated with BRA's application or the
supposed evidence which mayor may not support the Findings of Fact Nos. 45, 49,
50 or 51 in the Commission's April 20, 2010 Order. (See Tex. Gov't. Code
§2001.087) Therefore, in denying Mr. Ware's application based on unsupported
evidence from a pending application of a non-party, the Commission's April 20,
2010 Order amounts to a taking of Mr. Ware's property without the benefit of any
procedural due process, in direct contravention of the Article XIV of the U.S.
Constitution. In that regard, the Commission's order also violated the Texas
Constitution, Art. 1, Sections 3 and 19, and Tex. Gov't. Code §2001.174(A). [See
also Texas Citizens for a Safe Future and Clean Water v. Railroad Commission of
APPELLANT'S BRIEF PAGE 40
Texas, 254 S.W.3d 492, 496-497 (Tex. App. - Austin 2007, pet. filed); Hernandez
v. Meno, 828 S.W.2d 491,493-495 (Tex. App. - Austin 1992, writ den.)]
There is little doubt about the damaging impact of the referenced findings on
Mr. Ware's application. The most significant Findings of Fact Nos. 49, 50 and 51
were included in a section of the Commission's order labeled "Priority dates." In
Findings of Facts 40 and 41 (which directly contradict the Commission Finding of
Fact 47) the Commission established the importance of an Plaintiffs priority date
in the Commission's determination of water availability. Then, the Commission
directly compares BRA's alleged priority date to a less senior priority assigned to
Mr. Ware's application (Finding of Fact 48) rather than the date included in his
permit (Finding of Fact 46). In so doing, the effect of the Commission's order was
to deny Mr. Ware's application in favor of another pending and undecided
application. Moreover, the Commission's Finding of Fact 51 violates Tex. Water
Code § 11.141 by implying that the pending BRA application had already resulted
in a valid appropriation of water. That section ofthe Water Code provides:
"DATE OF PRIORITY. When the Commission issues a permit,
the priority of the appropriation of water and the claimant's
right to use the water date from the date of filing of the
application."
(Emphasis supplied)
Texas Water Code, §11.141
The agency's actions in adopting Findings of Fact 40,41,45,47,49,50 and
51 substantially prejudiced Plaintiff s substantial rights discussed herein, including
APPELLANT'S BRIEF PAGE 41
his right to due process, and therefore Plaintiff is entitled to the reversal and
remand of the TCEQ's decision [Tex. Gov't. Code §2001.174(2); Balla v. Texas
State Board ofMedical Examiners, 693 S.W.2d 715-717 (Tex. App. - Dallas 1985,
ref.n.v.e)]
Plaintiff did not agree to use information about BRA's pending application
or waive his objection to receipt of information about BRA's application into his
hearing record. Plaintiff offered the Executive Director's 2008 Water Availability
Review to the ALI for the limited purpose of establishing that it was the most
current water available analysis performed by the Executive Director regarding the
Brazos River Basin. In that review (Exhibit H; Clerk's Record p. 183-196) the
Executive Director updated the Brazos WAM that had been used two years before
in its review of Mr. Ware's application. The fact that the Executive Director found
that 74,387 additional acre-feet of water per year was available in the Brazos River
Basin using the same period of record as was used in Mr. Ware's Water
Availability Review was relevant and probative information for the Commission's
consideration of Mr. Ware's application. The fact that another applicant (or any
other applicant) may have also applied for the water available for appropriation is
irrelevant to any issue in this case. Plaintiff strenuously objected to the admission
of any evidence about BRA's application during Mr. Ware's hearing for the
reasons discussed herein. The Commission's inclusion of any information about
APPELLANT'S BRIEF PAGE 42
BRA or its pending application is objectionable and unlawful and has no bearing
on the question of water availability for Mr. Ware.
VII. SUMMARY
The Commission's April 20, 2010 Order denying Mr. Ware's application to
appropriate 150 acre-feet of water per year from the Lampasas River, Brazos River
Basin, violates the Texas Water Code, the Texas Constitution, and the Constitution
of the United States and is voidable and reversible. Apart from being unlawful, the
Commission's role in administering water rights is called into question when it
denies a family farmer access to water available for appropriation in the Brazos
River Basin for any term at all on the one hand, and supports contractual water
rights, and issues perpetual permits for use of State water associated with return
flows and updated streamflow conditions and data sets on the other hand.
VIII. PRAYER FOR RELIEF
WHEREFORE, CONSIDERING THE FOREGOING, Plaintiff asks the
court to vacate the Texas Commission on Environmental Quality's unlawful April
20,2010 Order denying the Application of Bradley B. Ware to Amend his Permit
to Appropriate State Water No. 5594, and remand the case to the TCEQ for further
consideration of Plaintiff's application based on the evidence of record and the
Texas Water Code and all applicable law; and for such other and further relief that
Plaintiff may show himself to be entitled.
APPELLANT'S BRIEF PAGE 43
Respectfully Submitted,
WEBB & WEBB
Attorneys at Law
712 Southwest Towers
211 East i h Street
Austin, Texas 78701
(512) 472-9990 Telephone
(512) 472-3183 Facsimile
, bbwebblaw.com
0.21033800
GWENDOLYN HILL WEBB
g.hill.webb@webbwebblaw.com
State Bar No. 21026300
ATTORNEY FOR APPELLANT,
BRADLEY B. WARE
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 10,260 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, and certificate of compliance).
This is a computer generated document created in Microsoft Word, using 14-point
typeface for all text, except for footnotes which are 12-point typeface. In making
this certificate of compliance, I am relying on the word count provided by the
software used to prepare the document.
APPELLANT'S BRIEF PAGE 44
CERTIFICATE OF SERVICE
I hereby celiify that I have this I--~
r? day of
( ~ , 2015, ","«I <op;" ofth, lorego;ng ;n~",m"'t UP""
the patiies to thlS PI' ceedmg, who's full and complete names and addresses appear
below, by certified mail, facsimile, hand delivery, or regular U.S. mail.
Linda Secord, Asst. Attorney General
Office of the Attorney General
P.O. Box 12548-MC015
Austin, Texas 78711-2548
Phone: 512-475-4002
Fax: 512-320-0911
Linda.secord@texasattorneygeneral.gov
APPELLANT'S BRIEF PAGE 45
GLOSSARY OF TECHNICAL TERMS
Brazos Water Availability Model - "Brazos W AM"
The Brazos WAM is a computer simulation that is designed to simulate the
water permits in the Brazos River Basin and the available water supply in the basin
in priority order. It is designed for TCEQ to determine when all of the senior water
rights have been satisfied, that there is additional water available. (See Exhibit D,
Tr. Vol. 1 p.71 line 12 - p.72line 6; Clerk's Record p. 110-111)
APPENDIX
Exhibit A. July 21, 2009 Application for Amendment to Water Right 5594A
Exhibit B. Applicant Bradley B. Ware's Motion for Rehearing
Exhibit C. June 7,2006 Letter from BRA regarding Conditions of Withdrawal of
Protest
Exhibit D. Excerpts of Transcript Volume No.1 of Hearing conducted October
28,2009
Exhibit E. April 20, 2010 Final Order ofTCEQ
Exhibit F. August 28, 1997 Interoffice Memorandum regarding Water
Availability Analysis
Exhibit G. November 14,2006 Interoffice Memorandum regarding Water
Availability Review for Permit No. 5594
Exhibit H. November 25,2008 Interoffice Memorandum regarding Water
Availability Analysis for BRA's Application No. 5851
APPELLANT'S BRIEF PAGE 46
Exhibit 1. Excerpts of the October 17, 2011 Proposal for Decision
Exhibit J. Transcript Volume No.2 of Hearing conducted October 29,2009
APPELLANT'S BRIEF PAGE 47
Exhibit A
July 21, 2009 Application for Amendment
to Water Right 5594A
" App. Exh. _--==--__
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TEXAS COMMISSION ON ENVIRONMENTAL'QUAiXllijl
. P,O, BOX 13088, MC-160 .
Austin, Texas 78711-3088· '"
Telephoue No, (512) 239-4691 FAX (512) 239:4770
APPLICATION FOR AMENDMENT TO AWATER RIGHT
REQUIRING MAILED AND PUBLISHED NOTICE; or
NOT REQUlRlNG MAILED lIND PUBLISHED NOTICE
ReferenC<l Tens Administrative Code Section 295.158(b) Or ©
'stomer Reference Number (if issued): CN 5594
., Ifyoa do not have a Customer Refurence Nmnber, oom"'pl':'iet~eS"'_='o=-'nnf.'Sof"'th"'."eor="'eD;<:ao-la"'Fo-onn~(TC"""E""Q-"l""04""OO"'):-IIll"'d'-::submit it with this
applkatiQn.
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,.
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:~ lIoItrrPabllc,SIIt.oITml·
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Form TCEQ-10201(revised 8/02)
64
, ..
'.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
..'
PERMIT:TOAPPROPRIATE .
AND USE STATE WATER
APPLICATION NO, 5594 PERMIT NO. 5594 TYPE:. Section 11,121
Name: Bradley B, Ware Address: Rte: 3, Box 211
Killeen, TX 76542
,
Filed: . July 1, 1997 Granted: NOV 0 7 1997·
,.
Purposes: IrrlgatiOll County: . Bell
Watercourse: Lampasas River, tributary Watershed: Brazos River Basin
of .the Little River, tributary
.of the Brazos River
.:" ..
·-witiiREAS·,··Briid1eY"irware 'has -ieqiiei:ted"a~thorizatioil to'dlveiiand-use' noT(o exceei:fi30'
acre-feet of water per annum to irrigate' 100 acres ofland owned by the' applicant in Bell County
approximately 15 miles southwest of Killeen, Texas; and
.. : ,. .. .. . .' .
WBEREAS, the Texas'Natural Conservation Commission frods thaljurisdictlon over the
, ';' application is establishe~; 'and .
.. , ••. ,~ •• , . . . . "'! .,
WHEREAS, no perSOll protested the granting'ofthls application; and
','
,. . . .,
vVlIEREAS, the Commission has complied with the' requirements ofthe Texas Water Code
and Rules . of., the Texas
0" ".. •
Natural
.' •
Resource
• "
Conservation Comb:iission
• • • •
hi isslihi.g this'
~ • ,
pennit.·
'
NOW,. THEREFORE, this permit to appropriate and use State Water' is issue'd to :B;~dl~;' B.
Ware, su~j~ct to, th~, fo~1~:vin~~~~8and _condi~~o.~s: . ...... ,',_ ..... .. '. .... ..... .. '
, .
. ,.,... ,,, . . . . . . , ,o_.
. r ~" ..
.
~ .._ ••• .:- . . . . . . . . ' , . ~ .... " .. - ... 'c' , .. : ..
Pehnittee is authorized t.o divert and use not to exceed 130 ac;re-feet of water per
. anllluri. from the Lampasas River to irrigate 100 acres of'land out of 26 l· acres in
the Vi, Brown Survey, Abstract No, 67, the D.G, Van Vicheton (Vecheton)
1
65
. .
Survey, Abstract No. 851, and the C Edwards Survey, Abstract No. 291 in Bell
,
County, Texas approximately 15 miles southwest of Killeen,' Texas. This iand'is
conveyed to permittee in a deed recqrded in Volume 1524, page 671 of the Bell.
County Deed Records ..
2. DIVERSION
a. Diversion Area: Permitte is authorized to divert water from any point
on the left or east· bank' of the Lampasas River, between a point
N60.6"W 2,050 feet from the southeast corner of the aforesaid Van
Vicheton Survey and a point· located S37'E 4,200 feet from the
aforesaid sutvey· comer in Bell Courity. This downstream point is
located at Latitude 31.032"N, Longitude 97.9,92'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,
perinittee is authorized to divert water herelmder ·during. the months of
April through ·June only when the flow of the Lampasas River at
U.S.G.S.·Gaging Station No. 08103800 near Kempner; Texas equals
., " .. '::--' ~.~ ..... _.. c' . ·.c-onxCMd~ '38 CfS·tlIi~ ·auri.fig~t1ie·Otliet' m:oj)ths' brily::Whenit"equalS' or- .
'exceeds 1f cfs: ...... c· ' ..... ".,. • . ~.
... "
b. The authorization to divert and use 130 acre-feet of water per year shall
expire and become null and void on .'November. ·7., 2007 unless'
prior \0 such date permittee applies for an extension [lereof. and such ..
application is suosequently granted for an additional term or' in .
. perpetuity. The priority date of this permit alld ~ll ex~ension.s hereof
shall be July 1, 1997. .. .. . .
. ". .
4. WATERGONSE~.vATION .. ,. ~ ~ " : ~ :. r·:,
,.
,', .
Peqniter, shall: iIn,pJemcn\ a'~at~r ~c?~er,-:aiio!).·.pi!l~ 0-~t.Pt9Yifl~s .f~r. t~e·
..
utilization of those practices,. techniques, and technologies that reduce the
consumption ofwaier, preventor reduce the1G)ss.or waste of water, maintain or
improve the efficiency .ill the use of water,· or increase the recyclb:\g and reuse
of watcr so that a water supply is made available'for future or alternative uses:
. .. .- "
. 'Tlrls pennit is iss~eds;;bject t~ aU superior ~d'sel)io~~~te~ rightsk.tl~e Brazos River Basin.
"~ . .
2
66
"
Permittee agrees t; be bound by the terms, conditions and provisions contained hereih and such
agreement is a condition precedent to the granting of this pennit. .
All other matters requested in the" application which are not specificaUy granted by thi~ permit
are de;nied. .
This pepjJ.it is issued subject to the Rules of the rexas Natural Resource Conservation
Commission and to the right of continuing supervision of Sta~ water resources exercised by the·
Commissiop..
TEXAS NATURAL RESOURCE
,
CONSERVATION COMMISSION
Par u'<.~
DATE ISSUED: NOV 0 7 19S7
ATTEST:
Eugenia K. Brurinn, Ph.D .,Chief Clerk
., .
.,
3
67
REQUIREMENTS FOR WATER CONSERVATION PLANS
FOR INDIVIDUAL IRRIGATION SYSTEMS
These Requirements are a synopsis of the rules as approved by the
Commissioners of the Texas Commission on Environmental Quality on
April 7, 1993. The approved rules were published in 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. 4
A water conservation plan for an lndlv1dualirrigator shall provide information, where applicable,
in response to each of the follOWing elements, including what the user intends to do, or not to do
and why, wIth regard to that element:
(1) A descrIption of the agricultural production process which shall include but is not limited
to the type of crops and acreage of each crop to be Irrigated. monthly irrigation diversions
and any seasonal or annual crop rotation and soil types of the land 10 be Irrigated;
(2) A description of the Irrigation metllOd or system and equipment including pumps, flow
rates, plans, aneVor sketches of the system layout;
(3) A descrIption as to whlch practice aneVor device will be utilized to measure and account
for the amount of water diverted from the source of supply;
(4) Any previous 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
limited to surge irrigation, low pressure sprinkler, drip irrlgation. pollUtion prevention,
and 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;
(9) Land improvements for retaining or reducing runoff, and increasing the infiltration of rain
and irrigation water including but not limited to land leveling, furrow diking. terraCing. and
\~eed control;
(10) Tallwater recovery and reuse;
(11) Any other water conservation practice, method. or technique which the Irrigator show to
be appropriate for preventing waste and achieving conservation.
68
Texas Commission on Environmental Quality
IRRIGATION WATER CONSERVATION DATA AND PLAN
FOR INDMDUALLY OPERATED SYSTEMS
Submit this form with an application for Permit to Appropriate State Water. You may want to contact
the local County Agent, Natural Resources Conservation Service office, the Texas Water Development
Board or a professional engineer in preparing this form. If you have any questions concerning the
information requested, contact us at (51m39"4730.
- Name of Applicant: BRADLEY B, vJARE
DayUme Telephone No.: 254--10 3t+ - 10 '5 217
Requested Diversion Amount: -:--;-1---'50;..0"''--:-:-::-::-::---:::-:---::-:::--_ _ _ _ _ _ _ _ _ _ __
5EG P>--lfAc..\-\GD pJ'.>.6,5 Foe TInS CMRT--=t'
I. Type of crop: Growing season (months): Acres irrigated/year:
1.
2.
3.
4.
Total number of acres: \'52.
Include hybrid crop names: for example, which type of coastal Bermuda?
II On average, how much water in acre-feet will be diverted montllly for irrigation?
January G May '21 September 20
TOTAL
February 4 June Irl October 'I for all _
months
March "3 July 25 November 5
April F") August 30 December 5
MONTHL
y
TOTALS ~o q3 31 150
m. Do YOIl seasonally or annually rotale crops? NO (circle one)
If yes, please describe: WI-IE/.\\i Fo\<J'l3E: I SDR6HUM-j bAlS w m--\ A LE6uME.
Su eM As "'-U$i RIAW W 110IER PEAs,
C:\FORMS\IO~lG:.\\pj (rcv1scd:vm Page Z
69
Bradley Ware
Part 1.
Some of my land I double crop.
Type 0/ crop: Growing season (months) Acres inilyear
1. Tifton 85 Bermuda I 8 months 36
Soft Wheat (Grazing) ---1 (donbJe crop) 6 months 36
2. Improved Native Grass 9 months 22
3. Brown midrib Sorghum] 7 months 54
Bob oats or soft wheat (double crop) 5 months 54
4. Costal Bennuda grass:::J (double crop) 8 months 20
Bob oats or soft wheat 5 months 20
70
I.
IV. Describe your soli type (include permeability characteristics. If available): 1305Ql.l.E CLA'Y
LOAM \\lqH WATER ~\DLDIt06 CAP/\UTV. /:)8JTOJ0 SILTY ClAY-DEEP
w(lL DRMj(D. SLDWL'/ PERMABl£ PRE.SE:JJ1\I)j 0.0WTDUR TE.RRI\CEPAfJD
5EEbEO TO tJAT\\lE E\RA'55 St:EC\ES .CJ</.>,\JJFDRD CI..A'/- wELl DRAll0eD PRESEJV'
e.oIVTOUR ThRRACE.D .AlJ:',D REfER Ttl 'TG'#S eooPE:RAI1\JE EXTE.I0SIO/J
PU,6uCATlO/J B- \0'70 p.B.
V. Describe the existing/proposed irrigation system including plans, designs and/or sketches
of the system layout, pump location, slope of the land to be irrigated, and specifics about
the delivery method. (For example: Single pivot with big gun sprinkler)
SloPE; D tc:> 3 PERCE.Wr /OCUIJE1?Y UWDSR6RCU~D PVC PUMP
c.APW1V 500 6.PM./pDJJ[.R UkllT 25 H. Po ELEcTRlC C6J'TER PI\JDr-
L.ePA DSSISIJ (lOUJ El0E:.R6Y PREUSS ADPUCAllDIJ) w11!i A /xS161J
E.FFE.C.IE.IS:.'f t>-'ilO\lE CJ5% DRA\\J/\J6 (;)(1-\1611-5 A)6,C,'l-D. TExf'S
CODPERI\\l\lE EXTEI0S ID/V PuBUc'ATloJJ B -\loll / L-22 1,)7, l-5D~,
B-loc;A"'1 tHo llo2.
VI. Describe the methods and/or device which wllI be used to measure and account for the
amount of water diverted for irrigation.
CEhlTE.Q PIVDT J.JD2.ZlE C'.HART AfJD PLlMP ~ \C~~y CUR\Je
G\IB rr B At-JI) Co 1
,
Lo6 DF DPE.MlI0f.) HOu'Rs ~Hl3lT -1-1,
VIr. If there's is an existing irrigation systcm~ any system evaluations been performed
regarding the efficiency of the system? ~ NO (circle one)
If YES. please indicate: . \
When: sEE AlTN:I:1ED TEXAS .A·t-M PLt5UCAllD\.) B-lfolO "I B(;'OI'j
Who performed the evaluation: DR. !DIll LYLE -n;XM A'l- M E.i<TEDS IDI0
5E\<.1J 1(£ , LuBi'IOC-K --rx
DR LEblJ NGW! TEXf'-S (loD~FATlUE: G><r8JSIOiJ
Page 3 .ANl.A1< 1LLo I TX'
71
Reslllts of the evaluation: tePA DES1Gk) CE;lSlEi< Pl\JC5f SYsTE,us ARE:.
PRD\)W TO EXCEED '45% E-FFCJJCfEtj01 At-JD qb% WJIPoRMITY
OF DI:5TRIBUTIOlJj E>Clill3li5 F'IG,/C.rtD05l~ AC81J1E:R PIVOT By
GUY flPRS
VIII. Describe any water conserving equipment used In the irrigation system. (I.e. closed pipes,
leak detection, pressure loss cut-off valve, etc.)
\11611-\ EF=FECIEf0CY, E.J£c:..-IRIC celJrRlFlcAl PU/JI.P,SEAlED AIJD
- r (FRIC:nOJ-) ')
PR-ESSuRE lEST€:D lOW ffiU<,(\,lloJJ, P\lc.. UND6RQi<OU.tJD
_VIII, cant. DELlVE.R'1 PIFE. LOW E.NER6Y PRECISE APP~
CLEf">/;,) CE:I0TER PI\laf: USIIJ::3 LOID DRIFT NOZZLES AND DRA<:i
I-\OS£S I WA1E..R P-El.EkSE: WILL BE. AT t\lD (\./.-oRE lltAk'l ! g 1/
AB0Jt: SDIL SURFA.CE: ,Tf.'l<AS cooPE';R,A.TIVE: E':,crWSlDhJ SE!<.\lICE:
PUBLICAnDDS I 6-(00/1 f L-2.2,Q I BC,;>ilc>Z, B-bI50, B-focRb
IX, Describe any methods which will be used for water loss control and leal, detection and
repair.
REbULA'R PRfSSLtRE TE..ST,, 'R£'PAI f2S MAC£. (,\SI/J(,;, AWROOCD
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 cairn and temperatures lower, and also the utilization of soil
moisture monitoring·,
Page 4
72
t·· , '
So N> MOIS1VR€ L8JELs ARE: MAI}JT.AII>'::£D FeR goP OCIJE.lCPM6'JI
BUT NDT TD 111E PC>JlJf of Rv,wofFAUSt>
, REFE.R 1P TEXAS
CCOPEI<.A.TIUE. EX:TEhl510W P(1Bl1~llol0 L-5o(>'j,J B-lbIO. :;>
e.-I 0701 B-0oIQ.
'TE.Y:As cooFERA'TI \.lEO E><-/EOf.-lSID/j .VJA'{C\< 'R ~"'bLI Kes LDe86 111:.:
li'ifPi / W[.tllV:teyc\s e.-\ ,-tat)'\..l,eaCl .
XL Describe any water saving land improvements whlch the applicant plans to incorporate
into the irrigation practices, such as conservation tillage ~nd other organic methods).
knifing. furrow diking, weed control, etc.
t:'18J)S ARE: CDI01DUl< IERRACE:D ,SOME: 6e.Er:ED 1b ~ll'JC
GR.A.SS SFEOES. IllLA6f' vJILL BE: MAlJMf£> 10 MAI/..)TAIN
f!...T LEAST '30% G,ROfllJD COIlE.R 00 SOIL SUR.FACE:.1
XII. Describe any recovery and reuse of taUwater runoff.
lRRI6ATlD0 vJlLl B( MDf\jffDREb 'SOTMf'\! SoiL WILL
COfSlp..\10 SUFFtiTf::i..)T MDlS1DRE: FOR PRoPER CROP
DE\lQoPMEi0f BUT 1'001 _IRRlt:iA.TC£) TO lliE. POIDT DF
RU'i..iOFF, REFER -10 TEXI'S CroPE:RA1l1JE ~1D0 PLIBUcAl700
1.-:- 5D3Q.
XIII. Describe, where appiicable, any xeriscape practices utilized (usually associated with
landscaping) .
Page 5
73
, ,
XIV. Indicate (in gallons-per-minute or cubic-feet-per-second) tl!e rate that water is diverted
from the source: SOD G.'PM DR \.2. c.-Fs
C:\FORM.S\10211l\1jXf (rcvisffl W5) Page 6
74
.~.
75
Exhibit B
Applicant Bradley B. Ware's Motion for
Rehearing
SOAlI DOCKET NO. 582·08·1698
TCEQ DOCKET NO. 2008·0181·WR \ n>j II' \ 6
. '''~\I'"\l
i _ IJ \ 1< 1 n .
Al'PLICATION OF BRADLEY B. WARE § BEFORil!j'i!1iE~§6g[~SION
§
TO AMEND WATER USE § ON
§
PERMTI' NO. 5594 § ENVIRONMENTAL QUALITY
.APPLICANT BRADLEY n. WARE'S MOTION FOR REHEARING
TO 11m HONORABLE TEXAS COMt\1ISSION ON ENVlRONMENTAL QUALITY:
NOW COMES, Bradley 13. Ware ("Mr. Ware," or "Applicant"), Applicant in the above
styled and docketed water rights permit amendment application, by and tlrrough his attorneys of
record, Stephen P. Webb and Gwendolyn Hill Webb, of Webb & Webb, Altomeys at Law, 211
Seventh Street, Suite 712, Austin, Texas, 78701, and mes this, Applicant's Motion for Rehearing
regarding the Aplil 20, 2010 Order of the Texas Commission on Environmental Quality
("TCEQ" or "Commission") "Concerning the Application of Bradley B. Ware to amend water
use Permit No. 5594; TCEQ Docket No. 200S·0181-WR; SOAH Docket No. XXX-XX-XXXX,"
("the Conunlssion's April 20, 2010 Order") and respectfully states as follows:
I. INTRODUCTION
Apart from the grievous it1justice perpetrated by the Commission Oll Applicant, Bradley
B. Ware, in denying him allY continuing right to divert and use water under Water Use Permit
No. 5594 for Ware Farm after over 100 years of waler use, Applicant asserts that the
Commission's April 20, 2010 Order violates extant provisions of tbe Texas Water Code, and
COlltains obviously reversible legal error. A May 11, 2010 decision of the Texas Court of
Appeals, Fomteenth District, Houston, in Texas Department of Public Safety v. Chad Michael
Henson (14-09-0010-CV) sets forth the standards of judicial review of decisions by an
administrative agency. TIle text of tile discussion is set forth in full below:
When reviewing ffil administTative decision under the substantial evidence rule,
the review court may affIrm the decision in whole or in part. Tex. Gov'!. Code
Ann. §2001.174 (Vernon 2008). It [the reviewing cawt] must reverse or remand
the case if the Appellant's substantial rights have been prejudiced because the
administrative findings, inferences, conclusions, or decision are:
(1) in violation of a constitutional Or ,iatutory provisioll;
(2) in excess of the agency's slatutory authority;
(3) made through ffil unlawful procedure;
(4) affected by other error of law;
(5) not reasonably supported by subslffiltial evidence when considering
the record as a whole; or
(6) arbitrary or capricious or characterized by abuse of discretion or clearly
\lUwarrauted exercise of discretion.
[Citing ffild paraphrasing Tex. Gov't. Code §2001.174 (Vernon 2008), ffild Tex.
Dept. o/Publlc Safoty v. Guajardo, 970 S.W.2d 602.J
Generally, as shown below, the Commission's order is in violation of the fundamental precepts
of the Constitution of the United States (5th and 14th Amendments) ffild the Texas Constitution
(ArLl, Bill of Rights, Sections 3 and 19), Texas Water Code and the Texas Govermnent Code;
is in excess of the Com.mission's statutory authority; is made through unlawful procedure; is
affected by nllmerOllS other errors of law; is not reasonably supported by snbstantial evidence
when considering the record as a whole; and is on its face arbitrary, capriciolls, and characterized
by abuse of discretion, or clearly unwarranted exercise of discretion.
Put simply, the Commission's Apri120, 20 I0 Order is subject to reversal because it finds
and concludes that there is water available for appropriation in the Brazos River Basin in the
form of return flows, but reserves the available water to a pending applicant.- not appropriator--
and yet denies water availability .in the current proceeding, against the substantial evidence of
record.
Al'PLICI>Nf'S MonON FOR REHEARING
MAy 14, 20)0 PAGE 2
77
n. STATEl\fENT OF POINTS OF ERROR
POINT OF ERROR NUMB:ER ONE
The Commission's April 20, 2010 Order unlawfully ignores the evidence of record
regarding the water available fol' appropriation by Applicant; therefore, the Commission's action
in adopting the April 20, 2010 Order was arbitrary and capricious, and was characterized by an
abuse of discretion.
Po~rOFERRORNUMBERTWO
The Commission's April 20, 2010 Order violates the directives and requirements of
Texas Water Code, §11.1 34 (b), regarding Commission action on water rights applications.
POINT OF ERROR NUMBER THREE
The Commission's April 20, 2010 Order is in violation of the requirements of Texas
Water Code, §11.l381, regarding the consideration and granting of water rights permits for a
tenn of years.
POINT OF ERROR NUMBER FOUR
The Commission's April 20, 2010 Order violates the fundamental doctrine of water right~
law of "first in time, first in right," as set forth in the Texas Water Code, Chapter 11.
POINT OF ERROR NUMBER FIVE
The Commission acted arbitrarily and capriciously to deprive Applicant of any continued
right to divert and use any water at any time for Ware Farm under Pennit No. 5594, an
authorized appropriator, on the stated basis of no water available for appropriation, while at the
Al'PLlCAN1"S MOTION FORJ1EBl;ARlNG
MAY 14,2010
78
same tUne granting water rights for new appri>Priations and issuing statements of water
availability fur other applicants, new pennittees, and other water rights holders.
POINT OF ERROR NUMBER SIX
The Commission's April 20, 2010 Order adopted of Findings of Fact pertaining to a
pending .non-party applicant; Moreover, the details of said applicant's pending application and
proposed appropriation were unlawfully used as a basis to dellY Applicant's water right
application.
APrLlCANr'S MOTION FOR REJlEARJNG
MAv14,2010 PAG~4
79
m. POINT OF ERROR NUMBER ONE
The Commission's April 20, 2010 Order unlawfully ignores the evidence of record
regarding the water available for appropriation by Applicant; therefore, the Conunission's action
in adopting the April 20, 2010 Order was arbitrary and capricious, and was characteriwl by an
abuse of discretion.
DISCUSSION
The adopted Findings of Fact regarding water availability and "The reliability of the
Model" in the Corrunission's April 20, 2010 Order are, on their face, inconsistent with each
other, directly contrary to the evidence of record, and founded upon unlawful procedure. While
the Commission is entitled to dmw an appropriate inference from tlle substantial evidence of
record regarding water availability in the Brazos River Basin, the Commission is not entitled to
abuse its discretiou by disregarding the existing evidence of record concerning :water availability
in favor of outdated ovidence known to be inaccurate. There was much hand wringing during
the Commission's consideration of Applicant's amendment application on April 14, 2010, and
the Administrative Law Judge and the Connnissioners all Opilled that it was a sad and difficult
decision that bad to be made to protect the water resources of the state. In fact, the
Connnission's decision to deny Mr. Ware's applicalion to amend. Pennit to Appropriate State
Water No. 5594 and terminate all water use thereunder should not have been made at all.
On November 14, 2006, the Executive Director perfonned a water availability review of
MI'. Ware's amendment application using the COllnllission's Brazos River Basin Water
Avaiiability Model ("the· Brazos WAM') which was current and accurate at the tinle it was
performed. See, Applicant's Exhibit No. 47, attached hereto. Two years later, however, the
Executive Director preformw another water availability review of the Brazos River Basin using
updated information which was not (Nailable at the time Mr. Ware's application was revieww.
TIle Executive Director updatM the Brazos WAM's Current Conditions data set and found tl,at
APPLICANT'S MonON FOR REHEARING
MAy 14,:UllO PAGES
80
there was an additional 74,387 acre-feet per year available for appropriation in the BlazOS Rivet
Basin. See, Applicant's Exhibit 50, also attached hereto.
It is lmdisputed in the record thai Mr. Ware's amendment application did not benefit from
the Executive Director's 2008 update of the Brazos WAM. The Executive Director's staff
hydrologist, Jeffrey Charles Thomas, testified at the hearing that neither he nor anyone else in
the Executive Director's office perfonned a water availability review of Mr. Ware's application,
other than the One completed on November 14, 2006 and included in Applicant's Exhibit No. 47.
TIle same witness also testified that no portion of the 74,387 acre-feet found to be available in
the Brazos River Basin in 2008 and set forth in Applicant's Exhibit No. 50 was ever applied to
Mr. Ware's application or the Executive Director's analysis of water availability for the Ware
application.
In considering the Applicant's arglUllent regarding water availability based on rctnrn
flows and \lpdated infonnaiion, the Commissioners appeared to believe that their questioning of
ColUlllission staff during the April 14, 2010 Connnission Agenda meeting regarding
consideration of retnrn flows and water availability was a lawful substitute for the evidence of
record. TIlis procedure is not lawful. The Commission's decision must be based on the evidence
of record, not the earnest responses of Couunission staff at Agenda, which responses are not
contained in the udministmtive record upon which the decision must be based. TCEQ staff
hydrologist Kathy Alexander responded to Commission inquiries stating that the Executive
Director had included the retnrn flows ShOWll Oll Applicant's Exhibit 50, attached hereto, in its
consideration of water available for Applicant's proposed appropriation. 1bis statement is
directly contl'ary to the testimony of TCEQ staff during the hearing, including Ms. Alexander,
regardu;g the consideration of 74,384 acre..feet of water shown to be available in the updated
Current Conditions data set of the Brazos River Basin Water Availability Model. The evidenoe
of record, as shoWn in an excerpt of the official transcript, is set forth below.
MrLlCANl"S MOTION FORRllHEAlUNG
MAY 14,2010 'fAGE6
81
CROSS EXAMINATION OF JEFFREY CHARLES THOMAS, TCEQ HYDROLOGIST ON
THEBRADLEYB. WAREAPPLlCATION
Transcript, Bradley B. Ware SOAH Colllesied Case Hearing Ootober 28, 2009, Pages 149, 150:
Q. Okay, the point is you didn't use \lllY portion ofthat additional water in
the basin in your model?
A. That's correct.
Trans(:ript, Bradley B. Ware SOAH Contested Case Hearing October 28,2009, Page 149, 150:
Q. Additional unappropriated water would benefit the entire basin, wouldn't it?
A. Yes.
Q. And so it doesn't matter whether it's above Stillhouse Hollow Lake, below it? It
would benefit everyone, wouldn't it?
A. It would benefit everyone downstream ofit and potentially thiit--yes, I can-say
that it would benefit everyone in the basin, yes.
CROSS EXAMINATION OF KATHY ALEXANDER, TCEQHYDROLOGIST
EXECUm'E DIRECTOR'S REBUTTAL WITNESS ON THE BRADLEY B. WARE
APPLICATION
Transoript, Bradley B. Ware SOAH Contested Case Hearing October 29, 2009, Pages 378, 379:
Q. . Okay. And so there were return flows available and you gave them a priority date
of October 15,20047
A. Yes.
Q. Okay. You meniioned that there were 74,387 acre-feet ofreturn flows resulting
from different discharges up and down the Brazos River Basin determined to be
available by TCEQ hydrology?
A. Yes.
Q. And those are the return flows that were given the October 15, 2004, priority
date?
A. Yes.
APPLICANT'S MOTION FOR REIDlAR1NG
MAy14,:20W
82
Q. Okay. And that-and none of those retUln flows, not any portion of them were
allocated for use by Mr. Ware under either a 1997 priority date or any other
priority date?
A. The retum flows were considered and -
Q. Yes or no, Ms. Alexander.
A. No.
Therefore, to the extent that the Commission's April 20, 2010 Order contains Findings of Fact
whlch state that water is not available for continued appropriation in the Brazos River Basin,
under the Brazos WAM, they are not reasonably supPOlied by substantial evidence when
considering the record as a whole. Applicant's Exhibit No. 50 shows that 74,387 acre-feet of
water per year are available in the Brazos River Basin in the latest version of the Brazos River
Basin Water Availability Mode!.'
Texas law does not confer upon the Commission discretion to disregard the evidence of
record. Tex. Gov't Code, §2001.l74(Z)(E) requires a reviewing court to reverse an order of the .
Commission that is not reasonably supported by substantial evidence considering the reliable
probative evidence in the record as a whole. The only reliable evidence is that Mr. WffrC'S
application never received a water availability review which referenced the amount of water now
known to be available for appwpriation in the Brazos River Basin. The Commission's reliance
on the outdated water availability infonnation included in Applicant's Exhibit No. 47, lmown to
be superseded by more reliable ruld updated information in Applicant's Exhibit No. SO deprives
the Commission's April 20, 2010 Order of any legitimacy under the law and constitutes an
obvious abuse of the Commission's discretion.
I The Commission was only willing to lIse the evidence of water availability tlllder the Brazos WAM In favor of an appHcation
filed by Brazos River Au!horlty, as shown in its adoption ofFlndfngs of Fact No-s. 42-52,
MrUCANT's MOnON FOR RElreARJNG
MAY 14, 2010 PAGE 8
83
IV. POINT OF ERROR NUMBER TWO
The Commission's April 20, 2010 Order violates the directives and requirements of
Texas Water Code, §11.134 (b), regarding Commission action on water rights applications.
DISCUSSION
Pertinent requirements of Texas Water Code, §11.134(b) are:
(b) The Commission shall grant the application only if:
(I) the application comonns to the requirements prescribed by this
chapter and is accom!>anied by the prescribed fee;
(2) unappropriated water is available in the source of supply;
(3) O,e proposed appropriation:
(A) is intended for a beneficial use;
(B) does not impair existing water rights or vested riparian
rights;
(C) is not detrimental to the publio welfare;
(0) considers any applicable environmental flow standards
established under Sectio" ILl471 and, if applicabJe, the assessments perfonned uuder
Sections 11.147(d) and (e) and Sections 11.150, 11.151, and 11.152; and
(E) addresses a water supply need in a marmer Ihal is
consislent wilh the state water plan and the relevanl approved regional water pJan for any
area in which the proposed appropriation is located, unless the commission determines
that conditions warrant waiver oftbis requirement; and
(4) the applicant has provided evidence that reasouabie diligence will
be used to avoid WOSle ""d achieve water conservation as defrned by Section
11.002(8)(B).
The Findings of Fact and Conclusions of Law in the Commission's April 20, 2010 Order do not
address the requirements of Texas Water Code, §11.134(b). To the extent that the Conclusions
of Law ultimately denying Application No. 5594A flow from the Findings of Fact regarding
water available for appropriation in the Brazos River Basin are not reasonably supported by
substantial evidence when considering the record as a whole; are arbitrary 01' capricious or
APPLICANT'S MonON FOR Rtll£.\llJNG
l\1AY14,2010 PAGEY
84
characterized by abuse of discretion or clearly unwarranted exercise of discretion, the
Commission's April 20, 2010 Order also violates Texas Water Code, §11.134(l;» as well. The
Commission's Order states:
44. The addition of "new water," [return flows] if it were proved to exist,
would be subject to all prior appropriation rights of sealor water rights holder and
could not be treated as available for neW allocation.
Finding of Fact No. 44 presents an unlawful inte.rpretation of Commission requirements under
Texas Water Code, §11.l34(b), which is only highlighted by the subsequent contradictory
finding that:
45. The full amount [described in Finding ofFact No. 49 as 421,449 acre-feet of
water per year] of the Brazos River Authority's reque<rted rerum flows become
available only at the furthest downstream point in the basin; diversions at other
points are possible due to specific facts and circumstances ofiliat application.
The Commission is charged with granting water rights applications when it finds that water is
available for appropriation. Instead of discharging its statutory responsibilities in accordance
with Texas Water Code, § 11.l34(b), and granting Applicant a continued right to appropriate 1SO
Acre-feet of water dating from his July 1, 1997 pIiority date, the Commission's April 20, 2010
Order "aliocated" the water available for appropriation in the Brazos River Basin to a subsequent
applicant, BRA.
ArrLlcANr'SMonON FOR REHEARJNG
MAY 14,2010 PAGE 10
85
V. POmT OF ERROR NUMBER THREE
The Commission's April 20, 2010 Order is in violation of the requllements of Texas
Water Code, §11.l381, regarding the consideration and granting of water rights permits for a
telm of years.
DISCUSSION
Texas Water Code §11.1381 states:
Sec. 11.1381. TERM PERMITS. (a) Until a water rightis perfected to
the full extent provided by Section 11.026 of this code, the commission may
issue permits for a tenn 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 financial commitments made for
water projects that have been built or that are being built to optimally develop the
water resources of the area,
(0) The commission shall refuse to grant an application for a term
permit if the holder of the senior appropriative water right call demonstrate that
the issuance of the tel1ll pennit would prohibit the senior appropriative water
right holder from beneficially using the senior rights during tl,.
tenn of the term
permit. Such demonstration will be made using reasonable projections based on
accepted method,.
(d) A permit issued under this section is subordinate to any senior
appropriative water lights.
Accordingly, even the Commission's unlawful recognition of the avallabilit), of return
flows in the Brazos River Basin, albeit solely for use under Brl1Zos River Authority's ("BRA")
pending water rights application, is unspoken Commission recognition that the evidence of
1 record shows there is water available for appropriation for Applicant's diversion and use, at least
for a term ofyears. BRA has only a pending application for a proposed appropriation. The water
\ Al'PLlCANt'sMOTION FORREllEARlNG
MA.¥ 14, 2010 PAGE 11
86
that the ColIl1llission's April 20, 2010 Order finds available for that proposed appropriation by
BRA is, by definition, available to Applicant before any new appropriation by BRA is authorized
by the Commission. Additionally, the evidence of record is that BRA is using only 20% of its
e:rlsting Stillhouse Hollow Lake water right, the closest and most pertinent water light to
Applicant.. Tex. Water Code § 11.1381 requires the holder of a senior appropliative water
right to "demonstrate that the issuance of a term permit would prohibit the senior appropriative
water right holder from beneficially using the senior right during the tenn of the tenn permit." In
this case, there was no senior appropriator party-- BRA withdrew; and there could bave been nO
demonstration of hann to BRA because it only has a pending application, not any right to
appropriate the 421,449 acre-feet per year ofreturn flows found to he available for appropriation
in the Commission's April 20,. 2010 Order. There was no demonstration of harm to any other
existing water rights holder in the Brazos River Basin, on the facts of record ill this contested
case hearing.
MPLICANT'S MOTION FOR RF.llEARlNG
MAV14,ZOlO PAGE 12
87
VI. POINT OF ERROR NUMBER FOUR
The Commission's April 20, 2010 Order violates the fundamental doctrine of water rights
law of "fu:st in time, first in right," as sot forth in the Texas Water Code, Chapter 11.
DISCUSSION
Texas water law establishes. long ago the prior appropriation doctrine of "first in time,
first in. right" to resolve disputes between appropriators and potential appropriators of State
water. The Texas Legislature codified the doctrine in the Texas Water Code, § 11.027 and further
defined the priority of an appropriation at Texas Water Code, §11.141. When the Conunisslon
issued Mr. Ware's original Permit No. 5594 in "Appropriate and Use State Water" in 1997, the
Commission's inclusion of Special Condition 3(b) merely memorializes the "fu:st ill time first ill
right" doctrine in Texas Water Code, §11.027 and §11.141. Special Condition3.(b) states:
"The priority date ofthls permit and all extensions hereof shall be Jnly 1, 1997."
Sections 11.027 and 11.141 protect the appropriation of Slate water, not an application for the
appropriation for a proposed appropriation of State water. The intent of the Texas Water Code is
obvious, on this point. The priority date of July 1, 1997 establishes the priority of Applicant's
appropriation; Tex. Water Code, §11.141 states:
Sec. 11.141. DATE OF PRIORITY. When the commission issues a pennit, the priority
of the appropriation of water and O,e claimanes right to use the water date from the date
of filing of the applloation.
n,e priority date applies to the original appropriation, regardless of whether the appropriation is
authorized for a term of years or in perpetuity. Where the appropriation is perpetual, the date of
the original application for same wOllld not change. When the appropriation is for a term of
years, necessitating re-application if the appropriator wished to retain the water tight, there could
be confusion about which "application" date controlled. Logically, on a renewal of au existing
appropriation it would remain the date of the original application. However, the Commission ill
ArPLICANr'S MOllON FORRElJI:.\WNG
MAY 14,2010 PAG£13
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1997 eliminated ali confusion and ambiguity by expressly interpreting Texas Water Law and
including Special Condition 3(b) ofPer!llit No. 5594.
When the Executive Director and, ultimately, the Commission, changed Mr. Ware's
priority date to January 5, 2006 [Finding ofFMt 48] the action violated §11.l41 of the Water
Code and §2001.174(2)(A) of the Government Code. Mr. Ware was deprived of a property right
conferred by the original Commission order issuing Permit No. 5594 without any notioe and
opportunity to respond to the removal of the right. A new, far less senior priority date was used,
improperly, in the Exe.cutive Director's November 14,2006 Water Availability Review of Mr.
Ware's application and in the denial of Mr. Ware's application. Therefore, the Commission's
order denying Mr. Ware's application on the basis of the change in priority date, also violated
Tex. GO'll'!. Code §2001.174(2)(C).
APPLIChN'f'S MonON FOil REBEIJONG
MhY14,2010 l'AGE14
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vn. POINT OF EUROR NUMBER FIVE
The Commission acted arbitrarily and capriciously to deprive Applicant of any continued
right to divert and use any water at any time for Ware Fann under Pennit No. 5594, an
authorized appropriator, on the stated basis of no water available for appropriation, while at the
same time granting water rights for new appropriations and issuing statements of water
availability for other applicants, new permittees, and other water rights holders.
DISCUSSION
The Commission's unlawful insistence on the absence of water available for a requested
150 acre-feet per year appropriation for Applicant's Ware Farm in this case stands in stark
contrast to its detennination of water availability for other appropriations. Without contested
case hearings, the Commission issued water lights fur perpetual permits to the City of Bryan and
the City of College Station. During the pendency of this proceeding, the Commission granted
Permit No. 5912 to the City of Bryan on February 5, 2010, authorizing the diversion and use of .
14,282 acre-feet (less losses) of tbose return flows [returned to a surface watercourse in the
Brazos River Basin] per year with not priority date. Also during the pendency of this
prooeeding, the Conunission granted Permit No. 5913 to the City of College Station, also on
February 5, 2010 authorizing diversion and use of 12,88 J acre-feet (less losses) of those return
flows [ret\ll1J.ed to a surface watercourse in the Brazos River Basin] per year with no priority
date. And, of course, in this case, the ConnniRsion's April 20, 2010 Order found water available
for a proposed appropriation by BRA, even though BRA is 1I0t a party to this case.
Effective March 10, 2005, ahuost eight years after Applicant's autholized appropriation,
BRA, the City of Abilene, and West Central Texas Munioipal Water Dl8trict entered into an
agreement on file with TCEQ regarding in part, the water proposed to be appropriated under
BRA's pending water rights application (and, at the same time, the water requested for
appropriation by Applicant), conferring upon each other water rights "for so long as any of the
Parties' water rights referenced in this Agreement remain in effect." The Conunission's April
Al'rLlC>lNT'S MonON FoR REIlEAlUNG
MA1(14,2010 PAGElS
90
20, 2010 Order then, effectively supports the unlawful allocation of water to the parties to this
agreement in violation of Texas Water Code §11.027. Other parties who "settled with BRA,"
include the City of College Station and the City ofBtyan. Consequently, the Commission's April
20, 2010 Order is founded upon the unquestionably unlawful procedme of allowing a water
rights holder to determine the allocation of Slate water available for appropriation.
Consequently, the Commission's April 20, 2010 Order denying Applicant's amendment
application is madc through the unfair and unlawful procedure of denying somo Applicant's
access to water available for appropriation in the fonn of return flows or updated information on
water availability. Texas Water Code §11.046(c) states:
§11.046(c). Except as specifically provided otherwise in the water right, water
appropriated under a permit, certified filing, or certificate of adjudication may,
prior to its release into a watercourse or stream, be beneficially used and reused
by the holder of a permit, certifie<l filing, or certificate of adjudication for the
purposes and locations of use provided in the permit, certified filing, or certificate
of adjudication. Once water has been diverted under a permit, certified filing,
or certificate of adjudication and then retumed to a watercourse or stream,
however, it is considered surplus water and therefol'e subject to reservation
for insll'ealn uses or beneficial inflows or to appropriation by others unless
c:,:pl'essly provided otherwise in the perroit, certified filing, or certificate of
adjudication. [Emphasis supplied.]
The Commission's order, which recognizes the presence of "the full amount [421,449 acre-feet
of water per year] of BRA's requested return flows," but also denies that 150 acre-feet of water
is available for Applicant's continned appropliation, is founded upon unlawful procedure. The
Texas Water Code and COlmnission lUles do not provide for reservation of state water available
for appropriation to future applicants. There is no law or lUle, and conse<juently no legal
justification for the Commission's actions denying a re<juested appropriation for Ware Farm
while granting perpetual or long (enn pewits for other later applicants and appropriators.
The importance of fair and accurate watex availability analysis by the Commission, has
its basis, not oniy in the Texas Water Code, but also in ptinciples of fundamental fairness, and
ArPLICANT'S MOTION FOR REITEAlUNG
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91
prohibition against property deprivatioll witilout compensation Ot due process, under the
Constitution of the United States of Amedca and the Texas Constitution. Water rights are
property rights, and the termination or denial of those rights witilou! just cause or fair
compensation amounts to an unauthorized use of the State's police powers. The Commission, in
every water rights case, must act in a just and reasonable way. Secret deals with applicants,
reliance on erroneous or outdated data, refusal to apply filets as dictated by statute, operating in
accordance with non-existeut roles and procedures unlawfully compromise tile Connnission's
water rights regulAtion. Above everything, Applicant should uot be denied under Commission
procedures which determine water availability based on unspecified proceclures and non-public
mles which favor some applicants over others \vitiloul regard to the statutory mandate, "As
between appropriators, tile ftrst in time in the fast in right.
Apparently, tile Commission misled Applicant in 1997 when it issued a term pennit, but
issued perpetual water rights to later Brazos River Basin applicants. Now, tile Commission's
April 20, 2010 Order compounds its previous errors by continuing to deny Mr. Ware access to
water available for appropriation in the Brazos River Basin.
M?!.JC>INT'S MOTION 1'01< REHMruNG
MAY 14, 2010 PAGE 17
92
YIlL POJNTOFERRORNUMBERSIX
The Commission's April 20, 2010 Order adopted of Findings of Fact pertalning to a
. pending non-party applicant; Moreover, the details of said applicant's pending application and
proposed appropriation were unlawfully used as a basis to deny Applicant's water right
application.
DISCUSSlON
The Commission's April 23, 2010 Order contains Findings of Fact 45,49, 50 and 51;
which refer to the unidentified application of Brazos River Authority, a non-party. 'These
findings of fact regarding the ongoing contested applicatiou of a non-party were used as a basis
to deuy Mr. Ware's application. Therefore, the Commission order
This text is long and has been trimmed here. Open the source document for the complete record.